The Death Of Convention

The Death Of Convention

Stephen Colegrave considers how Boris Johnson has used the vagueness and vulnerability of Britain’s unwritten constitution to erode democracy

Driven by a maze of conventions which very often have no basis in law, very few people will know exactly what the UK’s unwritten constitution actually consists of – or that it keeps evolving as those in power push its limits. Nobody has mastered this like Britain’s current Prime Minister.

Although Thomas Paine wrote the Rights of Man in 1791, the English upper-classes were determined never to have a constitution built on citizen’s rights, like revolutionary France and America – where written constitutions aim to protect citizens from the machinations of the corrupt, rather than protect the elite. Ever since Magna Carter, Britain has been ruled by an increasing complex patchwork of conventions aimed at keeping the establishment in power.

It may have developed a Bill of Rights after the Glorious Revolution in 1689, but it wasn’t that revolutionary – being limited to those who inherited the crown, stipulating that parliaments should be called, and that taxes should only be agreed by those parliaments. The evolution of our modern parliamentary democracy has been about increasing representation which, while laudable, is very different from guaranteeing citizens rights.

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A Web Of Convention

The sovereignty of Parliament – which the Vote Leave campaign, led by Johnson, told us was what Brexit was seeking to restore – is the only solid part of the UK’s unwritten constitution, but it is effectively built on sand.

Nowhere is more riddled with conventions than Parliament, with much of its arcane procedure driven by them. Importantly, they are meant to constrain the behaviour and ethics of governments. But Boris Johnson’s Government is flouting these norms like never before – and there is little to stop it.

All we are left with are a few unrelated parts of constitutional law such as the Parliament Acts, which limit the powers of the House of Lords. And, as the unlawful prorogation of Parliament in 2019 showed, the very functioning of it is vulnerable.

The most important convention governing the behaviour of all public servants has been found in recent years in the seven Nolan Principles, named after the first chair of the Public Standards Committee set up in 1994 to advise the Prime Minister. The current Government appears to have broken or pushed all of these to the point of no return.

The case of Priti Patel is perhaps the most obvious example. “The bullying allegations made against the Home Secretary were investigated by the Cabinet Office but the outcome of that investigation has not been published, though completed some months ago,” observed the current chair of the committee, Lord Weardale. “There may be legal complexities underlying this but those have not been made clear and this does not build confidence in the accountability of Government.”

As one of the most senior public servants, Patel should follow the Ministerial Code. However, although the Prime Minister has an advisor on minister’s interests, he can only advise and Boris Johnson himself has the ultimate power in such situations. He exonerated Patel of the bullying claims against her and sacked his advisor.

But Patel is not the first senior politician to offer no resignation in such instances. The only one which has been forthcoming in recent times – that of the former Health and Social Care Secretary Matt Hancock – required a camera to have been planted in a Government office and the might of the Murdoch press to publish footage of an extra-marital affair on its front pages.

That Hancock eventually left Government because of a personal matter, rather than over any of the numerous errors he has made during the Coronavirus pandemic – from repeatedly lying to Parliament, a lack of transparency over the awarding of COVID-19 contracts, allegations of cronyism, the care homes scandal, the shambles of ‘Test and Trace’ – does not disprove the rule of ministerial unaccountability which has become the new norm.

We seem to have arrived at ‘post-Nolan’ British politics – breaking the pact between our representatives in Parliament and the electorate that the truth will be told.

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Good Chaps

The English establishment has always used convention to maintain its power and ensure that only people like themselves attain non-elected positions of influence – from non-executive directors of government departments to magistrates. ‘Good chaps’ always knew how to use convention to ensure that only other good chaps, and preferably their sons and relatives, joined them.

In the First World War, most officers came from public schools and there was no nod to meritocracy except when there were few of them left as the war grinded on. In World War Two, it was much the same although a few grammar school boys crept in.

Allegations of cronyism have dogged Boris Johnson and his Government throughout the Coronavirus pandemic, not only around the awarding of millions of pounds of COVID-19 contracts to Conservative Party associates and donors without competition. As Byline Times reported in February, there are 19 unelected peers who serve as ministers in 17 Government departments.

Whilst ministers being appointed from those who sit in the House of Lords is an established convention, it has been stretched by Johnson, who used it to flagrantly to retain ministers he lost in the 2019 General Election, such as Nicky Morgan and Zac Goldsmith. Indeed, David Frost, a bureaucrat who has never been elected, led the final stages of the Brexit negotiations.

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A Civil Service Lost

One key convention in Britain’s unwritten constitution is that the Civil Service is non-political and works for administrations of whichever political stripes. We may have enjoyed boasting about exporting its ethos around the world, but unfortunately at home, this is no longer the case.

Not only has Johnson assiduously followed Tony Blair in swamping the Civil Service with political special advisors, he has also allowed ministers to take on permanent secretaries – the most senior civil servants in government departments, who are meant to be immune from political influence, sanction and win.

In this Parliament alone, three of the most important permanent secretaries have been forced out. The first and most controversial was Sir Philip Rutnam, who resigned from the Home Office and immediately launched a claim for constructive dismissal. Then the Cabinet Secretary, Sir Mark Sedwill, left following press briefings against him. Next was John Slater, after the Prime Minister “concluded that there is a need for fresh official leadership at the Department for Education”.

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The Rule of Law

If Johnson’s Government has killed convention, is the rule of law and the judicial system the saviour of Britain’s political system?

Unfortunately, probably not. This Government has an 80-seat majority in the Commons so it can easily pass the laws it wants – including weakening the right of citizens to bring judicial reviews of its decisions, which has been used to great effect during the pandemic by the Good Law Project and others.

Demonstrating the threat posed by an independent judiciary, the Government isn’t above briefing against it – such was the case in the Daily Mail‘s infamous ‘Enemies of the People’ headline on an article about the three judges involved in deciding that the Government required the consent of Parliament to give notice of Brexit.

But this Government’s success at breaking conventions might have hastened its downfall. For hundreds of years, the establishment was careful to keep conventions within acceptable limits while its elite members used them to maintain and strengthen their position. Now, those conventions appear to have been destroyed. Where this leaves Britain’s ruling elite and our democracy in the future remains to be seen.