Adam Tomkins is a Professor of Law at the University of Glasgow and was a Scottish Conservative MSP from 2016-21.
There is no doubt that, as prime minister, Boris Johnson sought to challenge a number of the ancient precepts of the British constitution. But, likewise, there is no doubt that the constitution has survived intact.
In the leadership battle still underway, it is notable – and to be welcomed – that none of the candidates attempted to put the constitution centre-stage.
Such voices as are calling for constitutional reform to address the alleged weaknesses that Johnson’s populism is said to have exposed are noises off. Rory Stewart on Twitter; Jonathan Sumption in the Sunday Times. Such voices should be heard, but the advice they are offering should, on this occasion, not be followed.
All prime ministers find things about the constitution to tinker with. Margaret Thatcher reordered our system of local government and enhanced the powers of the police. John Major worried endlessly about citizenship and whether citizens needed a new charter. Tony Blair wreaked havoc with the constitution, not least via devolution and the Human Rights Act. Gordon Brown wanted a new written Constitution (and was stopped, in large measure, by the civil service).
David Cameron promoted the Fixed-term Parliaments Act and tried to reform the House of Lords. The former has now been repealed and in the latter he was stopped by the brilliant Jesse Norman.
And Theresa May had to figure out how Brexit could be delivered at one and the same time in all four home nations without them coming apart at the seams. That project remains work in progress, not least as regards Northern Ireland.
Boris Johnson’s assault on the constitution was different, for he brought the same approach to constitutional rules as he did to any other sort of rule. He simply thought they were well and good when it came to other people, but that they did not apply to him.
Thus, he sought to dispense with Parliament when it was convenient to him to do so, the Supreme Court notoriously but, in my view, rightly ruling that his five-week prorogation of Parliament in 2019 was unlawful.
More recently, he rewrote key aspects of the Ministerial Code. And, at the beginning of the month, he clung to office for longer than anyone else would have done in his insupportable position.
Contrary to the views he has espoused from the Despatch Box this week, none of this had anything to do with delivering – or seeking to stop – Brexit.
I am no great fan of Baroness Hale’s judgments, still less of her larger-than-life taste in spider jewellery, but her Court was not acting as a bollard in the way of the will of the people to leave the EU: it was acting as a buttress for Parliament, ensuring that Parliament could not be shunted out of the way just because it was proving inconvenient to Her Majesty’s Government.
For the twelve hours leading up to Johnson’s eventual decision to quit Downing Street, from about 9pm on the Wednesday evening until 9am the following morning, it genuinely looked like the United Kingdom might be facing a true constitutional crisis (a term much overused and, in general, best avoided).
It is true that Johnson had not been defeated in no vote of confidence, either in Parliament or in the parliamentary party, and it is true that he did not therefore have to resign. However, in those fraught hours it became apparent (eventually even to him) that the prime minister was unable to form an administration. Ministers at every level were resigning more quickly than they could be appointed, and Johnson was fast running out of eligible personnel to fill the ministerial ranks.
The Queen’s government must carry on. And yet, without ministers, there was nobody to undertake this task. When there is no Secretary of State for Northern Ireland and no Minister for Security (both of which positions fell vacant more or less simultaneously during that fateful period) there is a gaping hole in the national security of the United Kingdom, a hole any prime minister must fill immediately.
Had Boris Johnson not indicated before breakfast on the Thursday morning that he would resign from office, we would have been in the uncharted waters that, for the first time in her long reign, Her Majesty the Queen would have been under a duty to consider whether to dismiss the prime minister of the United Kingdom. This has happened elsewhere in the Commonwealth (notably in Australia in 1975) but the last monarch to dismiss the government in Britain was William IV in 1834.
It did not come to this but, even if it had done, this would have been evidence of the constitution working: not (contra Stewart and Sumption) that it needs reform. The prime minister is the person appointed who, for the time being, can command the confidence of the House of Commons. As soon as it is apparent that such confidence has been withdrawn, the prime minister must resign.
And, if it is apparent that a prime minister is seeking to remain in office after confidence has been withdrawn, the Sovereign has a simple choice. Either Parliament must be dissolved to allow for a general election; or the prime minister must be dismissed.
There was speculation during those hours that Johnson might seek a dissolution and take his chance at the ballot box. Had he done so, the Queen would assuredly have declined to dissolve Parliament, for much the same reasons (as it happens) that Hale’s Supreme Court gave for ruling Johnson’s prorogation of Parliament unlawful in 2019.
In the case of Royal discretion to refuse a prime ministerial request for dissolution, the position is as set out in the Lascelles principles – yet another written set of rules which form part of our very much written (but, of course, uncodified) constitution. It was perfectly plain that Parliament was viable and that others from the majority party could readily have been found to command its confidence.
That is the task now underway, and the British constitution continues to guide and steer us, as it always has. It reminds us that, whoever is temporarily at the helm of government, ours is always and only a parliamentary government. It is not a people’s government. It may be popular but it can never be populist. Its accountability is to the House of Commons, whose members we the people elect to undertake this task for us.
No prime minister has any personal mandate to do anything. Successful prime ministers know that they rule for only as long as Parliament continues to want them. Once that well of support runs dry, time’s up.
Them’s the breaks and, if a sitting prime minister fails to read the room and realise that time’s up, our backstop is the Sovereign. Not even Boris Johnson could change any of that..
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