The Queen’s speech, the Johnson government, and the constitution – lessons from the 2021-22 session

As a new session of parliament commences, Lisa James discusses what constitutional lessons can be learned from its predecessor. She argues that the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms are fundamental traits of the Johnson premiership.

A new parliamentary session began last week, with a Queen’s speech that laid out a highly ambitious volume of new bills. Many of these are likely to prove controversial – including planned constitutional measures.

To assess how the government might proceed, and how this might play out in parliament, it is useful to look back at the 2021-22 session. This was the first of Boris Johnson’s premiership not wholly dominated by Brexit or the COVID-19 pandemic – offering insight into both the government’s constitutional agenda, and its broader legislative approach. Since becoming Prime Minister, Johnson has been accused of a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms. In earlier sessions, his supporters could blame the exigencies of Brexit and the pandemic – citing the need for rapid action in the face of fast-moving situations. But the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that these are more fundamental traits of the Johnson premiership. And whilst Johnson has thus far been successful in passing his constitutional legislation, his rocky relationships with both MPs and peers mean that he may face greater difficulties in the future.

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Partygate illustrates the fundamental constitutional responsibility of government MPs

Boris Johnson and his Chancellor have now been fined for breaking lockdown restrictions. Both have misled parliament over Downing Street parties. These are clear breaches of the Ministerial Code, which should lead to resignation. If the PM refuses to police the Code, says Meg Russell, that constitutional responsibility rests with MPs. A failure to exercise it would seriously undermine both the integrity of, and public trust in, the democratic system.

The Prime Minister and Chancellor of the Exchequer have been issued fixed penalty notices for breaching COVID-19 lockdown rules over parties in Downing Street. This means that they have broken the Ministerial Code on two counts. Paragraph 1.3 emphasises ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’. But the police have concluded that the law has been broken. Paragraph 1.3c of the Code then states that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

But it has been clear for some time that Johnson breached this rule, by repeatedly insisting in the House of Commons that all regulations were followed, and denying knowledge of Downing Street parties, when it subsequently emerged that he had attended such gatherings. Multiple sources have catalogued these denials. Rishi Sunak also said on the parliamentary record that he ‘did not attend any parties’.

But the final line of paragraph 1.3c is the rub. While both of these forms of breach would normally be considered resigning matters, the ultimate keeper of the Code is the Prime Minister himself. He has already faced down criticism over failing to uphold it in the case of bullying allegations against Home Secretary Priti Patel, which led to the resignation of the Independent Adviser on Ministers’ Interests. Both Johnson and Sunak have insisted that they are not going to resign, indicating that the Prime Minister is once again setting aside the Code – this time over multiple breaches, which are highly publicly salient.

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Post-truth – and post-conservative? How Boris Johnson’s Conservative Party poses a threat to the quality of our democracy

The Johnson government, and the Prime Minister himself, have been much criticised for their propensity for breaking rules, laws and conventions. Tim Bale argues that the government seems bent on freeing itself from the constraints that we used to take for granted, and has embraced populism in a reckless manner. He calls on ministers to reconsider their attitude to the rules of the constitutional system before it is too late.

I’m no expert on the constitution, the courts or the more arcane aspects of parliamentary procedure. But I can, I suppose, claim to know a bit about the Conservative Party. And I’m growing increasingly concerned.

The party has always been protean – shifting its shape, changing its colours like a chameleon to best suit the conditions in which it finds itself. But there have always been limits.

Margaret Thatcher may have been a disruptor, particularly when it came to undoing the post-war settlement to which her predecessors reluctantly agreed. Yet one always felt she had a basic respect for the conventions of representative democracy and the rule of law, even on those occasions where she and her governments pushed against them.

And the same went for her successors as Conservative premiers, John Major, David Cameron and Theresa May. But Boris Johnson? I’m not so sure.

Wherever you look now, you see a government seemingly bent on freeing itself from the constraints that we used to take for granted – and that, in some ways, our uncodified constitution and parliamentary conventions left us little choice but to take for granted.

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Boris Johnson and parliament: misunderstandings and structural weaknesses

On 21 January Unit Director Meg Russell appeared on a panel with two former Conservative Chief Whips, reflecting on Boris Johnson’s troubled relationship with parliament as Prime Minister. In this post she presents her central arguments – that the Johnson government in its early months has seemed to demonstrate some basic misunderstandings about parliament and its role; but also the government’s behaviour has highlighted some of parliament’s key weaknesses.

In early September 2020 I wrote a blogpost on Boris Johnson and parliament, which documented 13 unhappy episodes in 13 months. I had originally aimed at producing a list of 10 such episodes, but found that there was just too much material. Some of the incidents were obvious – such as the attempted prorogation the previous September, ultimately ruled unlawful by the Supreme Court. Others have continued to bubble along unhappily in the subsequent months – including the persistent refusal by Leader of the House of Commons Jacob Rees-Mogg to provide time for MPs to debate and agree proposals from the Procedure Committee to allow them to work virtually during the pandemic (frequently covered on this blog – see here and here), and the sporadic suggestions from government sources that the House of Lords should move to York. Some incidents were more obscure, but worth recalling for the record – such as Downing Street’s attempt to impose Chris Grayling as chair of the Intelligence and Security Committee (which rather dramatically backfired).

Of course that post was written five months ago, and the list continues to gets longer. It predated, for example, the dramatic showdown with former Conservative leaders over the government’s Internal Market Bill. It predated the announcement of the new Christmas lockdown rules during Commons recess, and the government’s refusal to allow a recall to debate them – despite protests by numerous Conservative backbenchers. It noted Johnson’s excessive first round of Lords appointments, but not his second within six months – both in clear breach of the Lord Speaker’s hardfought attempts to control the size of the chamber. It predated Johnson’s overruling of the House of Lords Appointments Commission’s recommendations on propriety, for the first time by any Prime Minister in the Commission’s 20-year existence.

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The Backbench Business Committee: an unfinished revolution?

2020 marked the tenth anniversary of the establishment of the House of Commons’ Backbench Business Committee – an event that marked the first major reversal of a century-long trend of the government taking increasing control of the agenda of the House. But the anniversary went largely unnoticed. Paul Evans, a former Clerk of the committee, asks whether this is because it has been outmanoeuvred by the usual channels, has lost its cutting edge, or because relative obscurity is what backbenchers really want.

The birth of the Backbench Business Committee

The background to how the Committee on Reform of the House of Commons (commonly known, after its chair Dr Tony Wright, as the ‘Wright Committee’) was established can be found, for those interested, in the introduction to its first report. Amongst the matters the House instructed it to consider, when it was set up on 20 July 2009, was the ‘scheduling of business by the House’. It recommended the creation of a new category of ‘backbench business’, to be managed by a new committee of backbenchers, a new ‘House Business Committee’ to bring transparency to the way in which the House’s wider agenda was determined, and a system by which the House as a whole would be given the final say on its agenda. Many of these ideas had been foreshadowed in a Constitution Unit report published in 2007.

After an inconclusive debate on the proposals of the Wright Committee on 22 February 2010, on 4 March, amongst other reforms arising from the committee’s recommendations (most significantly on the election of chairs and members of select committees) the House agreed that a proposal for the establishment of the Backbench Business Committee should be brought to it by the government (emphasis very deliberately added) before the start of the next parliament, and that a House Business Committee should be established during the course of that new parliament. In fact, as everyone knew at the time, the timetable for doing so was well-nigh impossible. The parliament was dissolved on 12 April, just 20 sitting days after the 4 March debate. That could have been the last we heard of the recommendations on new ways to schedule the House’s business.

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