Reflections on recent tumult

It’s been a while since I last felt moved to put out comments on what’s going on. One of the reasons that it’s been a while is that, whilst not being averse to having the odd chip or two at our senior politicians, I have always tried to do so for reasons other than their politics. But then we entered a phase when it all became very party political, and any hope of commentary which was neutral from a party political point of view went rapidly out of the window.

I’m dipping my toe back in the water this week because of the significance of recent events in the context of our constitution. Our constitution is a curious thing. There are bits of it which are in writing-recent examples include the legislation which established the Scottish and Welsh Governments and, many will argue, the Human Rights Act. But much of it, and in particular the parts which look after the relationship between parliament and the monarch as head of state, isn’t. Those parts are substantially based in common law, prerogative powers and conventions, and have gently developed through the generations with the odd jolt, for example the abdication crisis of the 1930’s, along the way.

To my eye, one of the most interesting parts of the accession of the King was the Privy Council meeting at which the accession was confirmed and the necessary was done to approve its formal announcement. If you ignore the extraordinary sight of 6 former Prime Ministers standing in a row, the pageantry and His Majesty’s first sign of irritation at an inkstand, it could, in fairness, be described as pretty dry. But what was on show was the delicate and unwritten balance that exists between the monarch and Parliament. Parliament sits at the sufferance of the monarch who has the power to constitute it and to dissolve it. The monarch, on the other hand, reigns at the sufferance of the people, represented by Parliament. 

The unwritten elements of the constitution don’t stand still. They evolve as the society which they serve evolves. Occasionally gaps emerge between the convention and the needs of the day, but they close. Unless those gaps have shown the status quo to be untenable, evolution has worked better than revolution.

Boris Johnson’s return from the wilderness?

It was with some trepidation that I heard the harbingers of Cincinnatus Johnson paving the way for his return to office, not from his farm, but from the Dominican Republic. It’s hard to argue with his claim, in his less than modest statement to announce that he wouldn’t be standing after all, that had his name gone from the Parliamentary Conservative Party to its rank and file membership, he would have been back in Downing Street. There are many, it seems, who hold on to the belief that he is a great leader who did a good job but was hounded out of office by the press. So why the trepidation in your correspondent?

During his Premiership, and, indeed in the time leading up to it, Mr Johnson showed a strong tendency to regard the end as justifying the means. This is not a quality which is peculiar to him as a politician. What is unusual in his case is the lengths to which he was prepared to take the principle. By way of example, his use of the ability of the Prime Minister to request that Parliament be prorogued with, by constitutional convention, the monarch having no choice to decline, was found to be unlawful. In essence, it was an abuse of the power to request prorogation for his own short term political means. It was a debating society trick which threatened to wash away centuries of evolution. The consequences for Parliament and for the constitutional position of the monarch could, but for the intervention of the court, have been far-reaching and hard to predict. But he didn’t seem to care, because he thought he’d found a means to suit his own short term aims. When caught out, his response was to attack the courts, and with it the rule of law, notwithstanding that the Government is responsible for passing and upholding law.

We might also have been faced with a degree of constitutional crisis had he been re-elected Party leader with a substantial majority of the Parliamentary Party having endorsed Rishi Sunak as their choice. As a man who had not been chosen by a majority of his Parliamentary colleagues, many of whom had sent letters of no confidence to the 1922 Committee only weeks before, and 60 plus of whom had resigned from ministerial office to force his resignation, it is debatable as to whether he could properly be regarded as having the ability to form a working Government. That doubt would have put the King, only weeks into his reign, in an unenviable position in deciding whether or not to invite him to form a Government which is, in effect, how Prime Ministers are appointed. We didn’t need a constitutional crisis to go with everything else.

Boris Johnson will always be a divisive political figure. Some will see him as a man who gets things done. Others will see him as someone as a self-proclaimed iconoclast who thrives on division and controversy and whose use of short term means for immediate ends without considering the longer term consequences is dangerous. Look at Northern Ireland, where the Brexit deal that he promoted is now causing a constitutional crisis and has caused the United Kingdom to trumpet from the rooftops that it fully intends to break its obligations under a legally binding international because it’s turned out to be a bad deal.

Roll back from the chaos 

The brief and disastrous Premiership of Liz Truss has shown that promising the unattainable to get elected, another Johnsonian trait, is not the way, and we’ve all paid the price. The comfort of the last week or so is that in choosing Mr Sunak, the Conservative Party appears to have chosen to roll back from chaos and that, as a consequence, the institution of Parliament, the relationship between Parliament and the monarch and the rule of law are all in a safer place.

Ian Waine
Senior Partner