WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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‘No contrition or self-awareness – just boosterism with an undercurrent of malice’  

‘No contrition or self-awareness – just boosterism with an undercurrent of malice’  

The political constitution worked.  That is the immediate takeaway from yesterday.  Political lever after political lever was pulled, with every ministerial resignation acting as a peine forte et dure, crushing Johnson until he admitted what everyone else knew – that his prime ministerial career was at an end.  Our uncodified political constitution, proving itself flexible yet durable, has come out the other side of Johnson’s premiership intact.  

Or at least, the constitution seems to have survived.  At time of writing, Johnson has resigned, but not left office.  Instead, like some vast sumo wrestler who has decided simply to sit on the mat, he intends to continue occupying Downing Street until the autumn, by which time the Conservative Party will have elected a new leader to whom Johnson will, presumably, give way.  His resignation speech may have noted that the parliamentary ‘herd’ has moved against him, but it didn’t suggest a prime minister who grasped quite why.  There was no contrition or self-awareness, just boosterism with an undercurrent of malice and resentment.  

Peculiar though this occupation may be, it is not unprecedented.   Gordon Brown occupied Downing Street after losing the 2010 General Election (something that Mr B. Johnson, then provocateur-cum-columnist at the Daily Telegraph condemned as ‘squatting’), holding the fort until coalition negotiations with the Liberal Democrats failed. At that point, he resigned, advising the Queen to look to David Cameron to form her government instead.  

What is unprecedented is Johnson’s behaviour since his resignation was announced.  Rather than acknowledge that he has lost the support and confidence of his Cabinet, his party, and the British people, he is attempting to continue to govern.  With one hand he is clinging to office, the precipice gaping below him, while with the other, he is trying to write checks that he knows no one should cash.  He has announced a new Cabinet, and it is implausible to imagine that he will not continue on the same legislative agenda, while using his prerogative to further abase his office. 

Three months is a long time in politics at the best of times, let alone in the aftermath of a pandemic while a land war rages on European soil. Dominic Cummings, Johnson’s papal camerlengo turned assassin, has tweeted, ‘if MPs leave him in situ there’ll be CARNAGE’, and much as he may be loathed by the body politic, he has a point. While it may be difficult to imagine today, it’s not impossible to see Johnson, having somehow governed semi-competently over the next three months, resurrected in the eyes of the British public, and the Tory party, with its indefatigable desire for power above all else, deciding that perhaps keeping Johnson in No. 10 isn’t such a bad idea after all.

There are already clear rules for getting rid of a prime minister.  Johnson survived the first attempt, and even though the Conservative Party would clearly vote him out of office today, the 1922 Committee has been hitherto unwilling to change the rules so that they can try and cast Johnson into the political darkness once more.  Alternatively, Keir Starmer has the power to call a vote of no confidence as leader of the opposition, either in the government or the prime minister himself, something that he has not yet done.  The former would be given priority in Parliament, and a vote against the government would ‘activate’ the Queen, giving her the authority to summon Johnson to Buckingham Palace and dismiss him.  Finally, as Dr. Catherine Haddon at the Institute for Government has written, the Cabinet could collectively advise the Queen that they no longer had confidence in the prime minister, and advise her on who she should appoint as his successor.

All of these events are, strictly speaking, matters of convention.  There is a convention that the Speaker accepts the motion of a vote of no confidence, and a convention that after losing it, the government resigns.  There is a convention that the Queen accepts the advice of her Cabinet, and that the prime minister resigns.  While the courts have been incrementally crystallising conventions into law, it would be quite the leap to go from suggesting that conventions can be judicially enforced to ordering the prime minister to resign.  

If there is an argument for our constitution to be codified, it is the formalisation of these conventions.  No longer would we have to depend upon abstract, vaguely defined concepts underpinning our constitution, with clear, enforceable rules replacing them.  Not only would they be more definite, but they would be more publicly accessible, with the people writ large able to easily see and have opinions on the constitution.  But for anyone who thinks that a codified constitution is some sort of platonic idyll, they would do well to consider how other nations with formal constitutions have reacted to autocratic populism.  

America is the obvious example, but a poor one. Its constitution is ancient, with the majority of its provisions dating back to 1776 and a coterie of Founding Fathers terrified of the people and desperate to keep the Constitution as isolated from them and as unamendable as possible.  Instead, Hungary and Poland are better at showing what a determined, effective ruler can do with a written constitution, with Viktor Orban, prime minister of Hungary, using his democratic mandate to continually rewrite the document, insulating him from scrutiny and keeping him and Fidesz, his party, firmly in power. 

Orban is not like Johnson.  He is not a figure of fun, staying in power purely because of his popular appeal, but is a hardened politician, an illiberal technocrat.  His devastation of Hungary’s constitutional regime shows what such a figure can do to a liberal democracy, even one protected by a modern, expertly drafted, constitution.   Ultimately, every constitution depends on conventions to survive.  Ministers, politicians, and civil servants must agree to be bound by it and to respect it, as without this obeisance, it is not worth the vellum it is printed on.  Conservative MPs should remember this, kicking Johnson out of office now, rather than waiting for him to erode more of our constitutional values while continuing to degrade the office he no longer deserves to hold – if he ever did. 

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