The writer is acting director of the Institute for Government, which is conducting a joint review of the UK constitution with theBennett Institute for Public Policy
At just over three years, Boris Johnson’s premiership will be shorter than many, although no less eventful than most. But in only three years, the approach he and his ministers have taken to governing the UK has taught us important lessons about the risks facing our constitution—lessons we must absorb rapidly as Liz Truss, who has arguably demonstrated similar proclivities as a minister, emerges as the frontrunner in the race to be the next prime minister.
Long before Johnson became PM, we were aware that the UK constitution is an unusual beast: a centuries-old amalgam of precedent, convention and rules scattered across numerous texts, laws and institutions, unlike any other in the world in its longevity and lack of codification. We already knew that an uncodified constitution is reliant—as the historian Peter Hennessy has put it—on the self-restraint of the “good chaps” (and chapesses) who work within it, and depends on their recognising the rationale for the conventions that guide its operation. And we knew that a political constitution—in which the legislature rather than the courts acts as the primary check on executive power—puts a particular onus on politicians to act as good chaps.
The most important lesson that Johnson’s three years as prime minister have taught us is how uniquely vulnerable this type of constitution may be to concerted manipulation by a determined populist leader with a large Commons majority and a calculated agenda.
Johnson was not that. His testing of the limits of the constitution was mostly opportunistic, driven by a passion for self-preservation and bolstered by an instinctive self-regard rather than by any concerted political project save that of “getting Brexit done.” He was no authoritarian. As with any leader, however, some of those around Johnson saw his premiership as a vehicle to achieve their own personal political ends—from Dominic Cummings’s “hard rain” on the civil service to Dominic Raab’s promotion of a bill of rights to replace the Human Rights Act.
Johnson may have adopted such projects more as a means to the end of sustaining his premiership rather than himself being the driving force behind them. Still, he was prepared to stretch the norms and conventions of the constitution to achieve them. As the Cabinet Secretary Simon Case put it in evidence to the Public Administration and Constitutional Affairs Committee in June, Johnson’s was an administration which believed it had “a mandate to test established boundaries.” That included legislating to contravene international law, attempting to suspend parliament and ignoring conventions about parliamentary accountability whenever this was deemed necessary. In many cases, constitutional boundaries held firm, but the vulnerabilities of the system became ever clearer.
The contested constitution
Johnson may not have been an authoritarian, but the instinct he shared with the populist leaders sprouting up around the world over the last decade—from Donald Trump to Jair Bolsonaro—was his belief that the rules and norms which constrain other people should not apply to him. This conviction was sustained by his belief—shared by his supporters—that the Conservative Party’s 2019 election victory represented a personal mandate handed to Johnson by 14m voters. By deriving a sense of legitimacy from an imagined will of the people, they were peddling a narrative strikingly similar to that promulgated by many authoritarians.
In the dying days of Johnson’s leadership, ultra-loyalist minister Jacob Rees-Mogg said: “it is my view that we have moved… to an essentially presidential system and that therefore the mandate is personal rather than entirely party, and that any prime minister would be very well advised to seek a fresh mandate.” This personal interpretation—which conveniently allowed him to threaten anti-Johnson rebels with the prospect of a general election that they would be unlikely to win—was contradicted by the reality of two mid-term changes of premiership in the preceding six years and will likely be quietly shelved once a new Conservative leader is in place.
Our constitution is uniquely vulnerable to manipulation by a determined populist
Rees-Mogg’s interpretation of a prime minister’s mandate was at odds with prevailing constitutional orthodoxy—that in a parliamentary democracy, a prime minister is (normally) simply the person chosen to lead by the party which returns the largest number of MPs to the Commons in a general election. Any electoral mandate belongs to the winning party, being made up of the personal mandates of individually elected MPs, not emanating from the prime minister him or herself. A successful party can choose to change its leader precisely because—unlike in a presidential system such as the US—they hold no individual mandate.
That Johnson and his supporters could labour under—or at least proclaim to labour under—such a misapprehension about the position of a prime minister within the UK’s parliamentary system is staggering. It demonstrates how the lurch towards personality politics represented by the Johnson premiership has confused understandings of how our parliamentary democracy is supposed to operate.
This is just one example of the first risk to the constitution which the last three years have highlighted—namely, how easy the uncodified and evolutionary nature of the UK constitution makes it for differing interpretations to develop and be deployed by different groups for political advantage. This is not to say that the codified constitutions of other countries are not contested; we need only look over the Atlantic to the US Supreme Court’s reinterpretation of Roe vs Wade to disprove such an assertion. But the evolutionary nature of the UK constitution makes it easier for differing interpretations to be claimed as legitimate and harder for them to be conclusively refuted.
Death by a thousand cuts
Not only is an evolving constitution easy to contest, but the fact that its rules, norms and conventions are located in a multiplicity of different places makes it vulnerable to subtle erosion without this necessarily generating widespread alarm. The Johnson administration’s three years in power have provided numerous examples of the checks and balances of the constitution being weakened or altered in ways that individually might seem insignificant, but which cumulatively generate cause for concern. We face the risk of the constitutional “death by a thousand cuts,” equivalent to that which Oxford-based legal academic Tarunabh Khaitan has argued is taking place in Modi’s India.
The Partygate affair illustrated Johnson’s belief that he personally should not be subject to the rules and norms that constrain others, while the Owen Paterson and Chris Pincher scandals demonstrated his belief that his friends and colleagues should be similarly exempt. The tone set from the top was that rules were for other people and would not be enforced. The flurry of ethical outrages which ultimately brought Johnson’s premiership to an end were legitimised—if not encouraged—by the example he set himself. Although he ultimately paid the price for ignoring the rules, dangerous constitutional precedents were set along the way.
The sense of exceptionalism demonstrated by Johnson and his ministers went far beyond the behaviour of individuals, to the actions of the entire administration. Emboldened by having won an 80-seat majority after a decade of minority or small majority governments, Johnson and his ministers appeared to think the executive had the right to implement its plans without any form of challenge. Having escaped the stranglehold imposed by the 2017–2019 parliament on progress towards Brexit, they increasingly seemed to have discarded the normal constitutional assumption that, while a government should be able to deliver its manifesto commitments, it should nonetheless subject the detail of its plans to the pre-emptive scrutiny of parliament and retrospective testing of the courts.
At times Johnson’s ministers demonstrated a form of constitutional vindictiveness
Instead, ministers appeared to reject any restraint as unacceptable. Bills were bulldozed through parliament without any concessions or amendments being entertained. High-level “skeleton” legislation was introduced without policy detail, preventing parliament from examining government proposals and instead awarding ministers ever-greater powers to implement their plans via minimally scrutinised regulations. Attempts by parliamentary committees to conduct routine retrospective scrutiny of ministers’ decisions and policies were frequently stonewalled or received only a perfunctory response, leading to a serious deterioration in the relationship between government and parliament. When legal cases were mounted to test the boundaries of the government’s immigration policies, they were dismissed as the unacceptable interventions of “leftie lawyers.” The findings of the prime minister’s adviser on the ministerial code were ignored to the extent that two post holders—Alex Allan and Christopher Geidt—felt they had no option but to resign. In all this, the idea of a personal prime ministerial mandate was one of the techniques deployed to justify constitutional norms being set aside, with the mandate directly from the public seen as outweighing any form of constraint on executive action.
Even worse than simply setting norms aside, at times Johnson’s ministers demonstrated a form of constitutional vindictiveness, using their majority to attempt to neuter any institution or individual who mounted a challenge to their plans. To take three examples, the intervention of the Supreme Court over the prorogation of parliament fuelled the Johnson government’s agenda of “rebalancing” the relationship between the courts and parliament, which included restrictions on judicial review. The action taken by the Electoral Commission against contraventions of the rules by Leave campaigners in the Brexit referendum (albeit sanctions were also imposed on Remain supporters) was followed by legislation to increase ministerial control over the Commission. And the government’s response to parliamentary scrutiny was to attempt to parachute in supposed loyalists to be chairs of key committees—successfully in the case of Bernard Jenkin on the Liaison Committee, unsuccessfully in the case of Chris Grayling on the Intelligence and Security Committee.
Any one of these changes—the disregarding of previously established constitutional norms or the diminishing of the independence or powers of institutions designed to provide oversight of the executive—might be seen as relatively insignificant. And the uncodified nature of the constitution makes it harder to form a comprehensive view of the changes that have taken place over the last three years. But taken together they represent a strengthening of the executive and a notable weakening of the checks and balances intended to operate within the constitution.
The constitution’s vulnerability is worrying. Objectively, there should be a strong incentive for the next prime minister to strengthen the institutions and norms which maintain the credibility of our parliamentary democracy and the governments it sustains. But despite the emphasis on Johnson’s failure to follow rules and lack of integrity in many of the resignation letters of ministers whose departures led to his downfall, these themes have been largely absent from the leadership contest thus far. Neither Rishi Sunak nor Liz Truss have demonstrated much appetite to distance themselves from the methods which Johnson deployed to stay in power. Instead, the campaign has shown that some of the most constitutionally damaging arguments of the last three years, including the idea that personal mandates matter more than parliamentary democracy, are still alive and well, and some of their chief proponents look set for a return to government.
