If a British minister knowingly misleads parliament, they are expected to resign as a constitutional convention. Should a minister refuse, then they could legally carry on in office, but it would be unconstitutional. Boris Johnson seems not to care. Last week, he brazenly refused to accept that the political principle should apply to him. What are the consequences of lying to lawmakers? The answer could be nothing much. That highlights a far bigger problem.
Britain is governed by a political – rather than a legal – constitution that relies heavily on conventions, and leaders with a sense of decency, to work. The dishonest and deceitful Mr Johnson is uniquely unsuited for the top job. A fish, it is said, rots from the head down. With claims of blackmail, bullying and racism, it seems so too does a political party.
The British constitution is said to be unwritten. This is only partly true. Written acts of parliament do regulate executive power. The European Communities Act 1972 took the UK into the EU and allowed judges to disapply legislation in conflict with European law. However, parliament remained ultimately sovereign in the sense that it did, under Mr Johnson, repeal the act in leaving the EU.
The despot who deems themselves to be above the law was supposed to be done away with by a constitutional monarchy. But Mr Johnson shows the need to be protected from our elected representatives as much as our former royal rulers.
In Britain this danger is heightened by the power of a Commons majority, what Lord Hailsham described in 1976 as an “elective dictatorship”. His answer was more democracy, not less. The peer’s proposals for a federal Britain and an elected second chamber have much to commend them today. The Human Rights Act, currently menaced by Mr Johnson’s proposals to hollow it out, fulfils Lord Hailsham’s call for a bill of rights. Ultimately, the former Tory lord chancellor believed only a written constitution could balance parliamentary power.
Britain could muddle into a new constitution, undergirded by the rule of law. There would be no requirement for a separate constitutional court that could strike down primary legislation. But judges could act if the rule of law was threatened – as they did when Mr Johnson illegally attempted to prorogue parliament.
Similarly, the courts would step in if a prime minister tried to legislate for a longer parliament than five years to hold on to power or rig elections by restricting the franchise. The rule of law could be entrenched such that only a supermajority in parliament could repeal it. Such a piecemeal approach might be how a new constitution emerges.
The “partygate” scandal highlights that Mr Johnson won’t concede that the executive is subject to the law and equal to its citizens before it. The prime minister has little respect for the civil service, local government or parliament. He may, shamelessly, make a faux contrite apology this week in the wake of a report by the Cabinet Office’s Sue Gray into illegal Downing Street parties. As arbiter of the ministerial code, the prime minister decides his own fate. The betting is he won’t sack himself. There are few ways – bar a vote of no confidence – to get rid of a bad prime minister. There is no law against cabinet knavery. Maybe there should be.
Mr Johnson once thought impeachment, last used in 1806, was a doomsday weapon against a prime minister. He tried to impeach Tony Blair over the Iraq war. Perhaps MPs should be able to hold a consequential Commons vote on the conduct of the prime minister, as one of Lord Hailsham’s Labour successors, Lord Falconer, suggests in a new book, for offending the constitutional principle of the rule of law. If such a test had existed, Mr Johnson would have failed it long ago – and the country would have been much better off.