Ed Brown explains how vague protocols and informal codes of conduct have been ruthlessly manipulated by the Prime Minister

The United Kingdom – with its grand roster of influential philosophers ranging from Lilburne to Bentham – is often imagined to be a bastion of liberalism, standing up for the rights of the individual against an excessive or malicious government. The truth, however, is that huge portions of Britain’s state apparatus are riddled with autocracy, lacking many checks and balances enjoyed by similarly developed nations.

In Britain, all the progress of the Enlightenment was just something that happened to other people. Separated from the continental turbulence, a comprehensive written constitution never materialised. The Church was not separated from the state, nor was the executive separated from the legislature. Britain emerged from the liberalising efforts of the 19th Century with a state that, to this day, remains far more centralised than that of most of our European neighbours; a Westminster government with a decent-sized majority has surprisingly little to worry about in so far as constitutional constraints are concerned.

And while we lack a codified constitution to curb the limit of state power, the quintessentially British way that we’ve dealt this state of affairs is much worse: with the terribly polite request that those in power simply be good chaps.

Such requests don’t register with politicians like Boris Johnson. Indeed, the brand of Conservatism that he embodies – a staunch belief in political and economic hierarchies, co-existing with the duty-abdicating philosophy that “there’s no such thing as society” – takes advantage of this informality to create something exceptionally dangerous. The United Kingdom’s uncodified, patchwork constitution is defined by convention and protocol rather than substantive law, with a series of rules and guidelines which governments and MPs are expected – but not compelled – to follow.

Many of these rules were first noted in a 19th Century text written by a parliamentary clerk named Thomas Erskine May. Erskine May: Parliamentary Practice – first published in 1844 with dozens of editions written since – is considered a leading authority on how MPs should conduct themselves.

One of May’s rules was that MPs should not deliberately mislead the House of Commons. May was also a stickler for that optimistic (and quite possibly futile) rule of political discourse; that policy should precede personality. MPs should take care to “guard against all appearance of personality in debate,” he asserted. This rule prevents MPs from making personal attacks against one another, which is hard to find fault with – but what happens if someone has lied, and you feel duty bound to call them a liar?

Maybe somebody has misled the Commons. Maybe they even did it on purpose. But to call that person a liar – according to Erskine May – is not a political argument, but an accusation of personal dishonesty.

Unfortunately, Johnson is a liar, and a shameless one at that. This characteristic is essential to his leadership (or lack thereof), and pointing that out is crucial in holding him to account. Under Erskine May rules, though, it simply isn’t allowed. Labour MP Dawn Butler exposed this farce when she was asked to leave the Commons for refusing to withdraw (accurate) comments that Johnson had “lied to this House and the country”.

There is, in fact, a mechanism by which such lies can be corrected; the guilty MP can voluntarily choose to correct the record. Yet they cannot be forced, either by the Speaker or anyone else. Essentially, therefore, just one person can confirm for certain that Boris Johnson was lying, and that person is Boris Johnson.

Such a system is nothing short of ludicrous. Yet, for the British state, it is hardly inconsistent. Often, the people expected to hold wrongdoers to account are the wrongdoers themselves.

Arbitrary Power

Evidence that Priti Patel and Rishi Sunak have broken the ministerial code is overwhelming. A Cabinet Office inquiry found that Patel’s bullying of civil servants had breached the code, whilst Sunak’s budget leaks to the press before it was heard by the Commons also constituted a breach.

Nevertheless, both remain in Johnson’s Cabinet – because, although protocol may say this or that, the Prime Minister is ultimately in charge – he or she has the final say on whether the ministerial code has been broken, a safeguard which is only as strong as the incumbent’s ability to imagine a world without them at the centre of it.

Another sinister consequence of a constitution comprised of convention is that it leaves the creation, abolition, and interpretation of laws at the behest of whoever is in power. When laws appear in a written constitution, it usually takes immense bipartisan effort to alter them (in the United States, for example, a supermajority vote of two-thirds; in France, three-fifths).

In Westminster, however, the government can theoretically enact profound change with a majority of just one. So long as you’ve got the votes – and Johnson does – there’s very little stopping you from playing fast and loose with even the most important laws, like those protecting our right to protest. When the single bulwark against creeping authoritarianism is an Upper House that Johnson can just ram full of cronies anyway, democracy is in a precarious position.

The British constitution does allow for judicial review. It’s how Johnson’s prorogation of Parliament was declared unlawful, when he tried to force through his vision of Brexit. But unlike countries with written constitutions, there is nothing stopping Johnson’s Government from legislating that the judiciary’s rulings are not binding. Indeed, reforms to this effect are already being planned, with an ‘Interpretation Bill’ that would allow the Government to annually review judicial decisions, and toss the ones they don’t support out of the pram.

In many ways, the British constitution is like one of those long, complicated jokes that build up for ages only to end abruptly without a punchline, and the real joke is on you for expecting anything substantial in the first place. What we need is a ministerial code enshrined in law, and a written constitution that grants clear rights to the judiciary to stop the government from exercising arbitrary power; what we have are several blank spaces where accountability should be.

The British state’s fatal flaw is that it operates on the assumption that basic human decency might at least occasionally get a look in. Unfortunately, nobody involved in its centuries-long development ever assumed we’d get a prime minister like Johnson.


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