It turns out that there are at least two ways in which you can subvert an unwritten constitution. The government of Boris Johnson has tried both of them. First, you can ignore unwritten rules, constitutional conventions and observance of the rule of law with an unrestrained contempt that sends the message that such rules are for the ‘little people’. Secondly, you can use a Parliamentary majority to bring in increasingly illiberal legislation that removes rights and undermines constitutional protections against unrestrained executive action.
Given that as Foreign Secretary in 2018, Boris Johnson found it acceptable within one month of the nerve agent attacks on 4 March 2018 on the Skripals in Salisbury by Russian agents, which he had denounced in Parliament (Hansard Vol.637 “Government Policy on Russia”, 6 March 2018), to travel to Italy between 27 and 29 April 2018 without officials in order to party in company with an ex KGB crony -(https://www.youtube.com/watch?v=zopEUw7gUMg) - then in terms of the rule of law and constitutional convention it is not clear what we had a right to expect of his time as Prime Minister.
Examples of what we got included the 2019 prorogation of Parliament, which as the Supreme Court ruled, was a dramatic instance of misuse of an obscure prerogative power, formerly held or claimed by mediaeval monarchs, and today exercised by the Crown on the advice of the Prime Minister. As the Supreme Court said -
‘The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.’
As a result, the Court determined that the power to prorogue cannot be unlimited and must, therefore be subject to judicial review, and it went on to conclude that its use had been “unlawful, null and void”.
This exercise has underlined how we need an end to the nonsense of prerogative powers, and a simple piece of legislation to the effect that none of them shall be exercisable without the consent of Parliament. Lord Lester of Herne Hill proposed such legislation in 2006 as a Private Member’s Bill, remarking that he wished that glasnost had reached No. 10 Downing Street.
There are of course a rich selection of other examples of the Johnson government’s defiance of unwritten constitutional conventions. They range from unilateral attempts to change the system of standards in public life to protect associates of the Prime Minister; to ignoring reports from ethics advisers, who then resign; to passing hundreds of pages of Covid 19 legislation – 102 sections and 29 Schedules of the Coronavirus Act 2020 - through Parliament in three days, and then ignoring it while partying within Downing Street; to having government Ministers announcing explicitly in Parliament an intention to breach international law with legislation on the Northern Ireland Protocol; to the Prime Minister’s own attempts to cling to office despite the resignation of no less than 50 of his own Ministerial colleagues.
The cost of this contempt for constitutional conventions and the rule of law is paid not just in terms of the reputation of the government of the day, but of the U.K.’s standing as a whole. Critics of China’s legal approach to Hong Kong were recently met with reminders of the Northern Ireland Protocol and the U.K.’s approach to international treaties. Critics of the Taliban’s legal approach to women and girl’s education were recently met with a response that our own Prime Minister was being investigated by the police.
The second way in which the government can subvert constitutional rights and protections is by means of illiberal legislation, using its House of Commons majority. This aspect of recent attacks on the unwritten constitution goes beyond the personal approach to law and order of a Prime Minister, represents the collective view of a government, and is ongoing.
Examples include the Police, Crime, Sentencing and Courts Act 2022, (see Part 3 Public Order) drastically limiting the commonly understood right to peaceful protest, in ways which put at risk the balance between proper policing and public rights, and therefore undermine public support for policing; the Judicial Review and Courts Act 2022, limiting some forms of recourse to judicial review of administrative action; the inaptly named “Bill of Rights” Bill which will limit, reduce and hollow out the UK’s adherence to the European Convention on Human Rights, and which the Bingham Centre for the Rule of Law has said should be withdrawn altogether; the Northern Ireland Protocol Bill, which transfers to Ministers eye-wateringly wide “Henry VIII” powers to dispense at will with provisions of an international treaty, (see e.g. Clauses 4-6) in ways which many commentators and the EU consider to be in breach of international law.
The Brexit Freedoms Bill as proposed will specifically enable the Executive to repeal or amend huge areas of “retained EU law” – including an unspecified amount of all our basic environmental laws - without any reference to Parliament. As Edward Gibbon noted in the Decline and Fall of the Roman Empire –
“The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive.”
The two contenders for the post of Prime Minister in place of Boris Johnson have outbid each other in pledging to sweep away over 2,000 “EU” laws, in ways which could be pointlessly but seriously destructive of environmental standards, as well as precipitating yet more trade disputes. When the dust has settled on the leadership race, the winner may care to reflect that while membership of the Labour, Conservative, SNP and Liberal Democrat parties may total roughly 845,000, some 4.5 million people, one in ten of UK adults and all potential voters, are members or supporters of environment and conservation groups. Will they thank any party seen to be destroying environmental laws? Recent experience, on air quality and water quality, suggests not.
How much of this agenda for attacking the constitution addresses questions of current critical concern to voters – energy bills, the recession and cost of living crisis, inflation, NHS waiting backlogs, or the accelerating impacts of climate change?
Governments in power for lengthy periods, or intent on talking to themselves, can lose sight of the underlying fact that in democracies, the whole of the rule of law ultimately comes back to the question of public consent.
The idea that any of the biggest problems that we face can be tackled successfully without the active engagement and willing support of wider society is fanciful, and that support is not won by attacking rights and legislative bullying. If we want young people to seek change by constitutional means rather than street protests, through Parliaments, by laws, then it will help to show that governments too respect constitutional means. We need an end to the arrogance of the executive, fewer bad laws, a government which observes the ones we have, an end to the assault on traditional if unwritten constitutional rights, protection of the independent judiciary, and a more effective and determined Parliament exercising its proper role of scrutiny of the executive. The Union is being stretched and buckled not just by an unwillingness by the UK government to apply ‘Common Frameworks’ but also by its lack of common sense, and common courtesy. We need a government that demonstrates more respect for the people that it is elected to serve, and better recognition that, as the American Declaration of Independence puts it, governments are “deriving their just Powers from the Consent of the Governed.”
It took the English Civil War to bring home to absolute monarchy that there were limits to its authority, based upon popular consent expressed through Parliament. To the end of his life, King Charles I still couldn’t see it, and shortly before his execution on 30 January 1649 outside the Banqueting House in Whitehall, he declared -
“For the people. And truly I desire their Liberty and Freedom as much as any Body whomsoever. But I must tell you, That their Liberty and Freedom, consists in having of Government; those Laws, by which their Life and their goods may be most their own. It is not for having share in government ... that is nothing pertaining to them.”
In other words, liberty and freedom consists of being at the receiving end of whatever Laws the government gives them – not of having any meaningful part or say in government as “that is nothing pertaining to them”.
Nearly 350 years later, and in the friendlier setting of a speech to mark her Golden Wedding, also given at the Banqueting House in Whitehall on 20 November 1997, HM Queen Elizabeth II gave formal notice that constitutional monarchy had learned the lessons of history -
“I know that, despite the huge constitutional difference between a hereditary monarchy and an elected government, in reality the gulf is not so wide. They are complementary institutions, each with its own role to play. And each, in its different way, exists only with the support and consent of the people.”
The constitutional monarchy has acknowledged in terms that all government depends, ultimately, on consent. The feeling that for the people, having a share in the government “is nothing pertaining to them” lives on in Downing Street.