Assaults upon our constitution are now regular events. One wakes of a morning, pops on the kettle, turns on the radio, and before your coffee is brewed, there’s todays obliteration of what our grandparents fought a war for. The UK government’s current executive has levied the most sustained attack upon our constitution ever known. That is not a florid turn of phrase – our constitution has never known so determined and sustained an attack since 1688 when, after the death of Cromwell, our constitutional monarchy was established, with sovereignty vested in parliament. Our right to protest is gone, our right to vote is being restricted and our right to our very nationality has been removed.
We’ve had dangerous moments as a nation, usually a matter of external threat, but we haven’t seen the likes of this year after year, front-on attack outside of wartime, accompanied by simultaneous attritional erosion as matters of “convention” are dismissed as merely optional. The guiding principle of the executive in the UK government has become “can we get away with it?”
Which brought us to 27 May 2022. Johnson likes a classical allusion, so, let’s give him one – that was your Rubicon, chum.
An uncodified constitution
Let’s trace the lead up first. It is because our constitution is uncodified that it is possible for some to deny that there has been any assault at all. They maintain that because there was no explicit proscription to an act, that it was therefore perfectly legal. Such people say that the prorogation debacle, for instance, was not a matter of the judiciary preventing over-reach by the executive, but rather it was an instance of judicial activism interfering with the proper business of government. They say that the lengthy prorogation at a critical moment was not “illegal”. And this is true – there was no explicit law on the point, so no explicit law was transgressed, so it was not “illegal”. The Supreme Court’s finding was that it was “unlawful”, which is not the same as “illegal”. “Unlawful” means that an act is incompatible with the law, “illegal” means that an act has been explicitly proscribed by law.
A constitution based on convention will make reference to a web of laws that may never explicitly refer to a particular circumstance, but which do establish the duties and obligations of parties and entities. We have precedents that become accepted as constitutional. So, for instance, going back to just after the Brexit vote, Gina Miller took the government to court because the government first sought to enact the leaving of the EU without reference to Parliament, permitting only a rubber stamping of the executive’s deal. This offended against a fundamental of our constitution: Parliament, since 1688, is sovereign, so the idea that law could be passed without parliament’s proper review was a nonsense. No one ever passed a law to say “If the UK leaves the EU, parliament must oversee and review the legislation”. It wasn’t necessary. It was implicit. Claims that “the people had spoken” were just tripe – like it or not, the people are not sovereign. Parliament is. Even if you don’t like it, Parliament is sovereign. That’s our constitution. However, had Miller not made her challenge, the government might have pushed it through. Probably only to be challenged and to be found unlawful later, but by then we’d be out of the EU, damage done.
Yes, I realise we are out of the EU, and the damage is done, but at least the violence, duplicity, mendacity and subterfuge is obvious , played out before the nation, and they weren’t permitted to crash out with no deal as some wanted. We have a hard Brexit, and that’s bad enough – it could have been much worse.
The constitution may have worked fine for centuries but…
The constitution is expressed through laws that establish broad principles, and therefore it is deemed unnecessary to make a law to cover every single possible contingency that may emerge. It is assumed that we are, for the most part, adults who know the score, who recognise the principles that maintain the country as a representative democracy with a constitutional monarchy, who will know if an act is incompatible with the web of laws that give rise to recognized conventions. And that worked more or less fine for centuries – until the legislature became infested with too many types (I imagine there’s always been the odd one here and there through the years, but they appear to have reached a critical mass in the Tory party of today) who, in my opinion, are neither functioning adults, nor decent people, and who maintain a willful ignorance of the constitution and our history.
In such circumstances, such persons may choose to disregard that the whole point of there being three branches – the executive, parliament and judiciary – is that they hold each other in check. The dangerous belief may instead emerge that if the executive wants to do something, it should be allowed to. The executive should not be subject to any restraint, it should be answerable to no one. This indicates a towering ignorance of the UK’s laws and history. That whole English civil war thing, Cromwell and the commonwealth, was all about frustrating absolute monarchy (which hadn’t ever really prevailed in the British Isles anyway, certainly not as it had in France. It is worth a look at the legal hoops Henry VIII jumped through before beheading two of his wives).
It’s all a bit terrible-twos, stampy footy:
“I want. I will have. You can’t stop me. You’re not the king of me. I’m the king of me. I’m the king of you”.
But, quite explicitly and deliberately, the executive is not sovereign. It isn’t in any democracy. It can’t be – in a democracy.
Assumed sovereignty and the Patterson affair
We saw exactly that attitude of an assumed sovereignty of the executive in the Owen Patterson fiasco, where the government, flexing its massive majority, attempted to steamroll parliament into, effectively, overruling The Commons Select Committee on Standards. The Select Committee moved to censure Patterson for abusing his position as MP to lobby for a company that paid him. The house was required to vote on that censure (because parliament is sovereign), but Tory MP Andrea Leadsom proposed an amendment that, in effect, kicked the matter into the long grass by means of a committee charged to investigate the whole disciplinary process for MPs, and then the Johnson regime imposed a three line whip on Tory MPs to back that amendment. However, this wasn’t really a matter of government business, which is where three line whips would normally come into play, but rather an oblique strategy to derail a vote upon an individual MP’s probity, a matter that had always, so far, been for MPs to decide for themselves.
But Patterson was of the in-crowd, the club, a patrician, and he was only doing what they all do (as a future inquiry into the covid procurement is sure to make clear) so the cabal could not afford to have any unfortunate precedents set with one of their own being chastised by the plebs. I mean, Labour MPs were voting on it! The very idea!
This particular effort failed, largely due to the wishy washy abstaining of Tory MPs, who couldn’t quite muster the guts to vote against the government (to be fair, 13 Tories did vote against it, but 97 could only tremulously abstain – the DUP had to be roped in, again, to support the regime’s line). It is gladdening to note that even with an eighty seat majority there remained yet the vestiges of such decency amongst Tory MPs that they would, even if half-heartedly (in abstaining rather than opposing), frustrate their rogue executive, but it is sobering how narrowly that frustration was won. Indeed, it should be noted that the government actually won that vote, but by so small a margin, and amidst such discontent, that it then backed down.
The Prime Minister cannot deal with oversight or challenge
Not long after this the Conservative Party was fined £17,800 for breaching electoral law over Boris and Carrie Johnson’s lavish refurbishment of their Downing Street flat. Gold leaf wallpaper, no less (you couldn’t make this up). Johnson had failed to declare a donation from Conservative peer Lord Brownlow towards it, with all the concerns that naturally engenders regarding free lunches, and why there ain’t ever any.
Johnson’s response to this frustration was to introduce a bill that effectively put the Electoral Commission under his control, and so ended its independence. Again, it was evidently simply intolerable to this Prime Minister that he be subject to oversight or challenge or restraint. Was it really too difficult to understand, you plebs? He wanted something. He should have it. End of.
That the rules are there to be abused was made crystal clear when he raised accusations of Keir Starmer facilitating Jimmy Savile’s abuse, an accusation often made by far right extremists but wholly contrary to the actual facts of the matter. Johnson made the accusation in the House of Commons precisely because, had he made it anywhere else, he would most likely have been sued in a libel action. He never repeated the accusation outside of the house, his ministers were also careful not to, even as they defended him. Parliamentary privilege, a vital expression of the sovereignty of parliament, here abused for the sake of a cheap jibe, all to stoke-up right-wing extremists and throw down a dead cat distraction from the recent abuses such as the Patterson debacle.
And the Sue Gray report
Sue Gray’s famous report might have occasioned him some discomfiture, a fifty pound fine and slap on the wrist, but it now appears that he had its final findings edited. Even with all the gruesome details of vomit and rudeness at parties that were supposed to be against the law, there seem to have been further parties and escapades that didn’t make it into the published report. After all, Sue Gray is a civil servant who reports to…. Boris Johnson. She was never truly independent at all. Bearing in mind the lurid tales that the report did tell, one wonders what he yet felt compelled to suppress…
And so we come to Friday 27 May…
Modifying the Ministerial Code
Johnson announces that he had unilaterally modified the Ministerial Code, removing the requirement that ministers resign if in breach of it. In one way this was merely a recognition of reality – Priti Patel was found to have broken the code by the independent adviser on the code at the time, Alex Allan, for bullying her department staff, in incidents going back to 2019. Johnson overruled the finding, saying that she hadn’t broken the code because she hadn’t bullied intentionally. So, Alex Allan resigned instead. He would be replaced by Lord Geidt.
The Patel case told of her shouting and swearing even though repeatedly advised to rein it in by senior civil servants. I’d suggest that the resort to “not intentionally” in such circumstances is doing some heavy lifting. The matter of intention is vital, however – to mislead the house intentionally is a cardinal sin under the code, and it appears, in excusing and prevaricating and possibly just downright lying over the partying through the pandemic (and possibly the Keir Starmer accusation too), that Johnson had misled the house, and since we’re talking about events in his office, indeed, in his home, it rather beggars belief that he didn’t have any idea that people were partying till they vomited, before then crashing for the evening, to be woken by cleaners they shouted and swore at. The Sue Gray report heavily suggests that he must have known – there is currently a parliamentary investigation that, it would appear, is likely to prove that he knew. So, that whole resigning for lying to parliament thing has got to go, cos riffing on “intentionally” ain’t gonna cut it this time.
Arrogance, an assumption of exemption and freedom of speech
Also on 27 May Johnson’s father, Stanley Johnson, was on the the Victoria Derbyshire show on the BBC, and when the presenter read out a tweet to him he responded “I think it is utterly absurd and wrong that you can read out on air a tweet coming in from one of your readers (sic) on air which calls the Prime Minster a liar. I think it is amazing you can do that”. Which is suggestive of these patricians’ assumption that they ought to enjoy impunity and exemption from any review at all, as well how they regard the freedom of speech of the plebeian masses. He’d prefaced those remarks with a comment to the effect that most of the British public were illiterate. The insinuation was obvious – Bloody uppity plebs.
Throw in the legislation that has ended our right to protest, with further restrictions in the pipeline. Throw in the legislation that demands photo ID to cast a vote, and which permits senior bus passes (the older demographic tends to vote Tory) but does not accept student cards (the younger tend to vote for other parties). The trajectory is obvious, but at least parliament was employed to legitimize these assaults. At least there was the opportunity to frustrate them, or at least, in the attempt at frustrating them, to widely publicize them.
Remember, also, the millions that have been given by Russians to fund the Conservative Party this last decade, and consider the sympathy of outlook between a neo-fascist authoritarian regime and Russia. Sorry, between a neo-fascist authoritarian regime and the Tory party.
On the 27 May the Prime Minister changed the rules on ministerial accountability.
Legitimate questions
As I am writing this, on 1 June, Lord Giedt (who took over as Independent Adviser on Ministers’ Interests after Alex Allan felt compelled to resign over the Patel bullying affair) has stated that the Partygate shenanigans left “legitimate questions” for the PM to answer. He also implied that he, Geidt, might also have little option other than to resign if the concerns were not addressed.
This is as former Conservative Party leader William Hague, and one time close ally to Johnson, Andrea Leadsom, have voiced reservations.
It’s less a matter of the wheels coming of the big red bus, more a matter of Michael Caine promising us he’s got an idea…
But no more flippancy. We have already heard the line that changing a leader when there is war in Europe is not on. There will likely yet be war in Europe in two years time. We are due a General Election in two years time. By the logic being established we shouldn’t have one, and by the evident precedents of this regime’s respect for law we really oughtn’t to expect one.
It’s only law, the constitution, the fabric of our society. What’s that when patrician privilege is threatened?
We’re in the Wild West here, where law optional, might is right, and a constitution so diminished as to prove barely an inconvenience for an authoritarian regime on a mission.
Know your place, plebs. Tug that forelock. As a prominent Russian is reputed to have said, it isn’t who casts the votes that matters.
It’s who counts them.
