In keeping with his entire tenure in No 10, Boris Johnson’s departure from the premiership is proving a test of the UK constitution’s heavy reliance on convention and principle. His final weeks or months in the job provide yet more questions about what the UK does with its constitution in the post-Johnson era.
Before the 2010 general election, the House of Commons justice committee met constitutional experts and the then cabinet secretary, all to discuss whether the UK needed to set out rules for any “caretaker government”. The worry then was if the general election produced a hung parliament it could take time before a government was formed, and the rules for any interim government should be set out in advance. Though there were some principles and precedents about what should and should not happen, it wasn’t explicitly set out anywhere.
The committee meeting led to the publication of convention as it was understood, eventually published in the cabinet manual that now guides constitutional practice. But UK officials and ministers back in 2010 were reluctant to call it a “caretaker” convention. Despite long experience with such conventions in Australia and New Zealand, they thought the term was pejorative. Instead they opted for “period of restrictions on government activity” – these included the run-up to a general election, the period after if no clear result had emerged and midterm if a government lost confidence. They believed setting out principles would be enough to avoid any chaos and that “hard and fast rules” would hinder, not help.
One scenario not envisaged in 2010 was one in which the prime minister had lost the confidence of ministerial and party colleagues in their personal ability to govern. But that is the situation now – and why those principles are likely to be tested. Restrictions on government activity after a prime minister has been forced into resigning by their party are a murky part of our constitution. Quite rightly, one could argue, since the government hasn’t lost a vote of confidence in the House of Commons and parliament isn’t dissolved. The government still governs. But the consensus now exists that you still act with care and responsibility and exercise discretion over big decisions.
That many of Johnson’s own party are questioning whether he can navigate such a caretaker period shows how little trust there is in conventions and uncodified rules. The track record of the Johnson years – culminating in his holding on even when his chancellor and home secretary told him time was up – shows why there is cause for concern.
One of the many legacies of Boris Johnson’s government is how it has exposed the vulnerability of our constitution if someone wants to push against convention and ignore precedent and is not worried about the consequences. From the unlawful prorogation of parliament to threats to break domestic law (over requesting a Brexit extension) and international law – twice – over the Northern Ireland protocol, let alone the repeated accusations of misleading parliament – not just over Partygate – is quite the record.
Johnson’s time in office has shown not only how much of the constitution depends on integrity and self-restraint, but also the difficulty in protecting the convention-based parts of it if those in power say “But why?”. If ministers are asking officials: “But where is that written?” or “Can you make me?” it is hard to point even to documents that set out our constitution in writing, let alone those that have the teeth to back them up. Johnson has shown that lack of teeth to be the fundamental flaw in the ministerial code. It covers much of the bad behaviour Johnson’s critics bemoan, but it can only be enforced ultimately by Johnson himself.
To some extent the events of the last week show that, when it came to the crunch, our constitution worked. Political pressure and the inability to form a functioning government were what forced Johnson into stepping down. Even the processes that do exist in extremis – a vote by the party, a vote of confidence in the Commons – were not needed in the end. The Queen was not dragged into a major political and constitutional row.
As we look to who will replace Johnson as prime minister, the assumption is that his successor will take a different approach. But they may not. So the question of how they reset on standards and ethics inevitably leads to questions of what they do on the constitution. There are immediate constitutional dilemmas Johnson’s successor will need to address, like appointing a new adviser on ministerial interests and giving them proper powers.
But they also need to think about how we build a better and stronger constitution for the future – and how we make sure it protects our institutions and public trust from anyone willing to put short-term political advantage before conserving our system of government.
Catherine Haddon is senior fellow at the Institute for Government