Adam Tomkins: Two weeks ago, Johnson’s exit showed once again that our constitution works

21 Jul

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 The former has now been repealed and in the latter he was stopped by the brilliant Jesse Norman.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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Henry Hill: There’s something rotten in the state of Scotland. But can anyone do anything about it?

18 Feb

Two weeks ago, when we last checked in on the Alex Salmond affair, we led with the calls for an independent, judge-led inquiry into the whole thing as confidence that the Scottish Parliament could actually hold the Scottish Government to account.

Well readers, it has got much, much worse since then.

Here’s what’s happened. First, the MSPs on the Holyrood inquiry into the Salmond affair voted 5-4 against publishing the former First Minister’s evidence. As a result, he refused to appear. They claimed this was on legal advice, but opponents smelt a rat because the vote was split exactly along independence lines.

As a result the Spectator, which had previously been calling for a judge-led inquiry, went to court to seek a clarification about whether the original judgement precluded the publication of the evidence. In their own words: “Lady Dorrian made it clear that the court had no intention of obstructing a parliamentary inquiry or stopping a free press from doing its job — the Salmond evidence can now be published and the whole story told.”

Yet this is not what happened. Despite the judge’s clarification, the Committee once again voted against publishing Salmond’s submission – again pleading legal advice, although in light of Lady Dorian’s comments it isn’t obvious what this is. Journalists have also pointed out that this second vote was on publishing a revised submission which MSPs haven’t actually seen.

Now the decision has been referred to the Corporate Body of the Scottish Parliament, which meets today. Its membership comprises five MSPs, one from each party (the Independent used to be a Green), plus an SNP chair. If a majority of the ordinary members vote for publication, will the Presiding Officer side with the minority to block it?

Whatever happens today, the saga seems to be turbo-charging a sea-change in attitudes towards the Scottish Parliament. Adam Tomkins, a high-profile Conservative MSP and no devosceptic, has been leading the charge, comparing the state of the SNP administration to that of John Major’s Government in the ‘sleaze’ era.

Meanwhile Mandy Rhodes, the editor of Holyrood magazine, has been if anything even more brutal. In an editorial entitled ‘Something Rotten’, she brutally assesses not just the Salmond inquiry but the litany of broken promises and governance failures we cover so regularly in this column. Rhodes concludes:

“They say that a fish rots from the head down. And something is beginning to reek. The question will be whether by 6 May the electorate is simply prepared to just hold its nose.”

That’s quite a journey for a magazine which marked the advent of Nicola Sturgeon’s first ministership by branding her the ‘Angel of the North’ and running a cover posing the question ‘Can she do no wrong?’. And here’s Alex Massie, another man who’s no devosceptic but finds himself compelled by circumstances to reach for our hymn sheet:

“For this now risks becoming something greater than a mere fiasco. It is fast reaching the point at which it embarrasses all Scotland’s political parties and the institution of parliament itself. Holyrood’s committee structure is plainly incapable of dealing with issues of this kind and Scotland’s political culture has – equally obviously – failed to produce or promote representatives capable of discerning the distinction between party interest and the public interest.”

For his part, Salmond remains keen to testify. The Herald reports that he has ‘cleared his diary’ after submitting the revised version of his evidence. But he continues to insist that its publication is a precondition of his appearing before MSPs, and the Nationalists seem deeply committed to preventing that from happening.

In the meantime, the SNP have suffered from their usual brace of bad-news stories. Jeane Freeman, the Health Secretary, has been forced to deny that officials spent days ‘plotting how to spin’ an official report into care home deaths. Stephen Daisley writes about the Scottish Government’s ‘education stitch-up’, as ministers shunt the publication of an official report into education back until after the upcoming elections – although apparently the courts may yet intervene. Taxpayers apparently face a £100m bill over a bungled prosecution of businessmen involved in a takeover of Glasgow Rangers football club.

And on the party civil war side, we have Kenny MacAskill, a Nationalist MP and critic of Sturgeon, calling for the Scottish independence campaign to be formally separated from the SNP.

But as ever, the question is: will any of this make an impact on the Scottish electorate? There are some signs of a fall in poll support for independence, which is very welcome. But the Nationalists have faced a torrent of awful news stories for months without it knocking them off track to form the next Scottish Government. Clearly the unionists need to up their game – hopefully a slick new attack ad which emerged on Twitter this week is a taste of things to come.

P.S. Writing in the Times, Kenny Farquharson points out that the Government’s mooted ‘Festival of Brexit’ has been captured by the usual suspects and acquired a new working title: ‘Festival UK* 2022’. We humbly submit that if Ministers are serious about waging the ‘culture war’, they can start by making sure that a festival celebrating this country doesn’t feel the need to qualify the name of the country. Honestly.

Carlaw resigns. Counter-intuitively, the Scottish Tories may need a proper leadership contest.

30 Jul

Almost a year to the day after Ruth Davidson dramatically decided to step down as leader of the Scottish Conservatives, her successor has done the same.

Jackson Carlaw, who stepped in as interim leader before being effectively crowned in a lopsided leadership contest against Michelle Ballantyne in February, has decided that he is not the man to lead the Tories into the 2021 Scottish elections.

The immediate result is a great deal of confusion. As the Scottish Tories have two deputy leaders, at the time of writing not even the MSPs know who is stepping up as deputy leader.

More uncertain still is the question of who will succeed him. There is no obvious dauphin amongst the Scottish Parliament group, many of whom were only elected in 2016.

Adam Tomkins, one of Ruth Davidson’s most high-profile allies, is stepping down in 2021 (as is Davidson herself, at least at the time of writing) and in any event had perhaps blotted his copybook by toying with Murdo Fraser’s old idea of breaking away from the Conservative Party. (The band of Scottish Tories who believe in this plan didn’t field a candidate in February – will they this time?)

Twitter, meanwhile, is abuzz with speculation that Douglas Ross, the Member of Parliament for Moray, is about to throw his hat into the ring.

Ross, who was reportedly Davidson’s preferred successor before winning his Westminster seat, resigned from the Government in May rather than defend Dominic Cummings. This may give him some distance from the Government which may help him with Scottish voters who haven’t warmed to Boris Johnson. There is also precedent for an MP simultaneously sitting at Holyrood for a time – Alex Salmond did it between 2007 and 2010.

But would the man Downing Street sources branded ‘Mr Nobody‘, and who split with the UK close-knit leadership, be able to count on the support he’ll need from the UK Conservative machine?

All of which leads to the question of how the transition should be managed. With less than a year to go until what could be a make-or-break Holyrood poll the temptation to avoid a full contest will be strong.

But there is also a case to be made that the Party needs a fuller debate about where it is and how it got here. Carlaw’s resignation follows the planned departures of both Davidson and Tomkins and the stepping down in January of Eddie Barnes, the Tories’ long-serving ‘top spinner’.

The machine which delivered their stand-out 2016 result, of which Davidson was a necessary but not sufficient component, has been shedding parts for a while. A new leader is not the whole solution, any more than the old one was the whole problem.