Our recent book, The Bonfire of the Decencies: Repairing and Restoring the British Constitution, analysed the turbulent 2019-2022 Boris Johnson administration from a constitutional perspective. It noted a worrying tendency. Johnson himself, and various ministers and officials in his government, were prone to disregarding norms. In pursuit of partisan advantage or personal gratification, they were often willing to bypass non-binding constraints to which those in their position should willingly subject themselves. Self-regulation is essential to the proper functioning of any political system; but is perhaps even more important in the case of the United Kingdom (UK), given its lack of a ‘written’ or ‘codified’ constitution. Its absence is therefore a serious concern.
We considered a wide range of trends and incidents. Among them were the so-called ‘partygate’ scandal; the UK approach to the Northern Ireland Protocol; efforts to intimidate and demean legal professionals; the dissemination of misleading information to Parliament and public; departures from good practice in the award of Covid-related contracts; the high turnover of senior civil servants; changes to the status of the Electoral Commission; and the troubling treatment of refugees. Taking these factors into account we identified a series of problematic categories of behaviour on the part of the Johnson governments. They were:
- Poor conduct that did not necessarily violate any specific rule;
- Departure from rules without clear legal basis such as conventions;
- Unlawful activities of a constitutionally challenging nature;
- Violations of criminal law by senior officials and ministers;
- Willingness to break with treaty obligations and international law; and
- The compromising of public institutions and the values associated with them.
Furthermore, as well as being prone to departing from and undermining norms, the Johnson administration also displayed a tendency to evade, belittle, or erode any mechanisms that might serve to limit it (such as Parliament, the courts, and other oversight bodies), particularly in its efforts to perpetrate constitutional violations.
We judged, moreover, that the transgressions that occurred under Johnson were part of a wider and longer continuum. Any relief that the ending of his term as Prime Minister might (understandably) arouse should not distract from a realisation that urgent and substantial corrective action is required. His mere departure has not reversed the damage caused during his premiership. Many changes brought about will remain in force until actively reversed, and initiatives instigated will continue to come into being unless halted. Forces, groups, and people that drove, sustained, and were harnessed by him in his anxiety-inducing conduct during this tenure can be expected to continue to exert themselves, potentially leading to further such harm.
We noted in our work that the post-Johnson UK government would inevitably include within it numerous individuals who variously tolerated, facilitated, defended, and took a prominent role in the patterns of behaviour that made his term of office so objectionable. Ultimately, his party turned on him. But the fact that it installed him as leader at all, and that it took so long to remove him, is not encouraging. The decisive revolt of July 2022 came only after the emergence of clear evidence that he had morphed politically from asset to liability, and growing resentment among colleagues who found themselves personally compromised by some of the dubious characteristics of his administration.
Events since the displacement of Johnson have served to reenforce these points. During the brief and remarkable tenure of Liz Truss, constitutionally dubious occurrences included the removal from post of the Permanent Secretary to the Treasury, Tom Scholar; and the attempt to evade proper scrutiny of fiscal policy. Collective Cabinet responsibility – a central component of the UK system of government – rapidly deteriorated to the point of becoming unviable. Under Rishi Sunak, we have already seen the reemployment of an individual as Home Secretary within days of their resignation from the same post, having breached the Ministerial Code. Furthermore, falling within the Home Office policy brief, the pursuit of questionable policies with regard to the treatment of refugees, inherited from previous governments, has continued and possibly magnified.
These developments are far from encouraging. But we do not wish to encourage despondency. There are a series of steps that can be taken that we hope will help restore, reenforce and reinvigorate our constitution. Some firm proposals are already on the agenda. They include recent recommendations from the Committee on Standards in Public Life that would serve to strengthen mechanisms for upholding the principles according to which government is supposed to operate, such as those set out in the Ministerial Code.
Other measures have yet to receive the same degree of advocacy, but in our view merit consideration. Among them is the idea of an oath of office for incoming prime ministers, to be made publicly in the House of Commons, in the presence of its Speaker. While it would not directly compel better behaviour, this practice might contribute to an improved culture of constitutional compliance. We suggest the following wording:
THE PRIME MINISTER’S OATH.
To uphold the principle and practices of collective Cabinet government
To uphold and respect the conventions and expectations contained in THE MINISTERIAL CODE, THE CABINET MANUAL, AND THE SEVEN NOLAN PRINCIPLES OF PUBLIC LIFE.
To sustain the impartiality of the Civil and Diplomatic Services, the Intelligence and Security Services, and the Armed Forces.
and to have constant regard for THE CIVIL SERVICE CODE AND THE SPECIAL ADVISERS’ CODE.
To account personally to Parliament and its select committees for all the above.
To uphold the rule of law in all circumstances.
Beyond this possible measure, consideration should be given to harder and more entrenched regulation through the establishment of a ‘written’ or ‘codified’ constitution. Such a document would become the ultimate source of legal authority within the UK polity, taking precedence even over the UK Parliament and primary legislation it issued. Establishing an instrument of this type would be a major undertaking, and need to rest on an inclusive and considered process. But it could, we hope, help correct the weaknesses in the system that have lately become apparent, and avoid repetition of some of the excesses of the Johnson era, and that of his successors. It might, moreover, be a means of extracting a lasting, beneficial outcome from recent negative experiences.
Andrew Blick is Professor of Politics and Contemporary History and Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.
Peter Hennessy, FBA, is Attlee Professor of Contemporary British History, Queen Mary, University of London.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
This post was originally published by the Constitution Society and can be accessed here: https://consoc.org.uk/constitutional-combustion-continues/. We are grateful for being given permission to republish the post.
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