Quo vadis UK? The British Constitution after Johnson

Conor Gearty  – London, 28 August 2022 

Boris Johnson is down but not (at the time of writing) yet completely out. The British constitution is in a far worse state than he is, irretrievably damaged by his manipulation of it in his endless pursuit of power for its (and his) own sake.  It cannot be fixed by his mere removal from office, when this finally arrives in early September: deeper challenges lie in the way of an effective fresh start.

Though no longer leader of the Conservative Party (having resigned on 7 July 2022), Johnson continued through the Summer  as prime minister while the Conservative party engaged in a political civil war to see who would succeed him.  The new prime minister is expected to be appointed immediately upon the announcement of the leader of the Party in succession to Johnson, due on 5 September 2022. Having voted confidence in him shortly before his resignation (finally brought about because so many of his Party colleagues in government refused any longer to work with him), Conservative MPs did not then finish the job by securing his removal from the prime ministership as well.  This could have been achieved if even a small percentage of the 350+ Conservative MPs had worked with the opposition parties to vote no confidence in his administration after he had been removed as leader of the Party.  Naturally Johnson would not have resigned the prime ministership even if he had lost such a vote.  He had threatened to call a general election if defeated in this way, but the constitutional reality was that he had no power to do this.  Under the UK’s quaint unwritten constitution, it is not the prime minister but the monarch who dissolves parliament albeit ‘on the advice’ of the former, advice that is invariably followed – otherwise the UK would not be any kind of democracy. In an important Supreme Court case in 2019, the court had unanimously castigated as unlawful advice on a closely related matter, the prorogation of Parliament. Once bitten, twice shy: it is by no means certain that the Queen would have been either duty-bound or inclined  to accede to a prime ministerial request to hold fresh elections if there were somebody in Parliament who could command the confidence that was being withheld from Boris Johnson, and there clearly was in those first weeks of July, in the shape of (among others) the current deputy prime minister Dominic Raab. But Johnson’s threat (which might well have led to the electoral destruction of his Party) worked.  Not for the first time, it was former prime minister (and conservative colleague) Sir John Major who saw through Johnson with more clarity than most: he thought it ‘unwise, and maybe unsustainable’ to allow him to stay on, with his immediate ejection from office being ‘in the national interest’. This advice was not taken.

What are the likely consequences?  The first is already evident. Never that interested in governing (as opposed to enjoying the fruits of power), Johnson has simply given up, more or less.  He skips meetings and plans parties, only reluctantly moving a wedding event from his prime ministerial retreat when he was found out.  In the weeks after his resignation as Party leader, his own communications team at no 10 mention only phone calls with the leaders on Norway, Japan and the Ukraine and the making of various appointments. A late August visit to Kiev allowed for some photo opportunities with the Ukraine president.  In July he had released various  selfies of himself flying a typhoon fighter jet while the country suffered from a heat wave induced by a change in climate that as a journalist he had long denied and derided when it was still possible to prevent. (Johnson spent a career trivialising politics and belittling those interested in serious policy issues for some of Britain’s many foreign-owned right-wing newspapers and periodicals before entering politics.) 

Where he has been energetic has of course been in relation to himself.  He has sought to build a Trumpian base as a power-maker within the Conservatives, and to some extent has succeeded: the favourite to succeed him, Liz Truss, is a Johnson loyalist.  The membership of the Conservative party that decides his successor is a much wider group than the Parliamentary party.  The only role the Conservative MPs had was to decide which two MPs to put before them.  That membership (around 180,000 of them it is said) is much older, whiter, more male and more affluent than the general run of the population, far more likely to live in the prosperous south-east and the great majority of them (76% on one informed estimate) are pro-Brexit (still!). Polls are produced showing that were Johnson on the ballot paper they would vote for him again. A billionaire who was elevated to the House of Lords by Johnson against official advice (and who gave the Party £500,000 just three days later) tried (unsuccessfully it seems) to whip up a Trumpian fervour around the idea that his name be included in the ballot paper. Through it all and into the Autumn and the new regime,  Johnson remains a member of the House of Commons.  His calculation is likely to be that his creature Truss (whose attraction to the Tory demographic may not be entirely intellectual) is so useless that he will be called upon by Conservative MPs to return as PM within a year, and that a grateful nation who have forgotten or no longer care about his moral emptiness will welcome him back, like some kind of prodigal returning to a long-running TV soap opera.

There is however one definite obstacle that could derail his plans to return if indeed he has them.  One of the few remaining certainties in Britain’s decayed unwritten constitution is that ministers (including the prime minister) must not ‘mislead’ Parliament.  (Under ancient rules of parliamentary good behaviour, you are not allowed call someone a ‘liar’ in the Commons so ‘mislead’ is the word of choice.) Among his myriad of lies, deceptions and misrepresentations, it looks very much as if Johnson as prime minister was caught out on one, when he stated categorically that ‘all guidance’ on Covid ‘was followed’ in Downing Street during the pandemic. Not even Johnson can any longer claim this to be true – he has been fined for a breach of the regulations and as everyone now knows Downing Street was party central while the rest of the country embraced lonely self-isolation.  The inquiry into this ‘misrepresentation’ continues even after Johnson finally vacates office. The seven MPs on the Committee on Privileges conducting the investigation have the agreement of the Commons Speaker Sir Lindsay Hoyle that if he is punished for his infraction with suspension from the Commons for ten days or more this could trigger the Recall of MPs Act 2015, under which 10% or more of voters in his constituency could force him to face a bye-election before he can continue to serve as their MP (that is, assuming he is re-selected by his Party).  This Autumn is probably too early for Johnson to be sure the public have forgotten how much they hated him (and it was that hate, expressed in byelection defeats and opinion polls that had forced colleagues finally to disown him, not constitutional propriety), so there is a very real chance that he would lose such an election. Not even Johnson can be sure that he could return from such humiliation (though he might).  (He is only 58 and politicians these days often carry on into their 80s, as Italy, the United States and Malaysia among others attest.)

Where does Johnson leave the constitution?  Clearly broken. There is only apparent virtue in campaigning for a written constitution since without tackling the lies that are part of the deep structure of British politics and culture this would only make matters worse: freezing the current moment into an unalterable document would make real change next to impossible.  What are those lies?  Most immediate is, of course, the myth of parliamentary sovereignty, the idea of a Britain gloriously above the squalid necessity of international cooperation, of behaving – in other words – like an ordinary country. Johnson’s catastrophic Brexit was the pinnacle of this delusion but many similar fantasies lie scattered around its slopes. A second lie is the country’s name, and here Johnson has huge responsibility.  The state is anything but the United Kingdom it holds itself out to be – it is rather a scattered set of disgruntled sub-states and even within one of them (Northern Ireland) estranged within itself as well.  How can these cracks be (literally in the case of a written constitution) papered over? A third, larger lie drives the rest but barely gets spoken off: Britain as a uniquely benign imperial power; Britain as leader of the Commonwealth; British subjects as fortunate beneficiaries of a regal power that is as ancient in its origins as it is perpetual in its grip on the nation’s imagination.  No constitutional convention of worthies will ever overturn any of this overnight; nor will any focus group even imagine, much less support, what needs to be done.

The sad fact is that the UK is not even a majority Conservative country: at the height of its great Brexit success of 2019 it won only 43% of the vote.  The huge majority it enjoys was secured because of its idiosyncratic ‘first past the post’ voting system.  The immediate answer to Britain’s woeful situation – and it has been spotted by the opposition parties – is tactical voting, the mustering of single candidates to challenge the Tories in a united way, constituency by constituency.  If this secures a Common majority at the next election then a change to voting by proportional representation should be imposed without any referendum, on the basis of that mandate. A general election fought on the new basis should immediately follow. The United Kingdom might then have a fighting chance of growing up.