Boris Johnson’s constitutional legacy

Boris Johnson’s premiership is expected to end on 6 September, when it is anticipated that he will offer his formal resignation to the Queen at Balmoral and make way for the winner of the Conservative Party leadership election. Lisa James demonstrates that his time in office has been marked by an impatience with constitutional checks and balances and a willingness to depart from convention. She argues that his legacy risks being the normalisation of such behaviour.

What have been the major issues and challenges during Johnson’s premiership? 

Constitutional controversy has been a consistent feature of Boris Johnson’s premiership. His first months in office, amid the turmoil and acrimony of the late-2019 Brexit deadlock, were marked by the unlawful prorogation of parliament, suggestions that he would defy the law, and briefings from allies that if the Commons withdrew its confidence he would ‘dare the Queen to sack him’.

Thankfully, the monarch was not dragged into Johnson’s resignation this summer. But the Prime Minister stepped down only after a tense standoff with his own party, as it forced him from office over a series of standards-related scandals. The most prominent of these, partygate, will outlast Johnson’s premiership – with the Privileges Committee’s investigation into whether the Prime Minister misled parliament ongoing.

Though the intervening years perhaps lacked such obvious constitutional fireworks, these topics were never off the agenda. The Johnson government’s reform programme, and behaviour, often provoked controversy; the COVID-19 pandemic raised questions about how the country should be governed in times of crisis; and the fallout from Brexit heightened tensions over the territorial constitution, as discussed elsewhere on this blog – particularly in Northern Ireland.

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The Belfast/Good Friday agreement’s three strands have not outlived their usefulness

Voters in Northern Ireland go to the polls tomorrow to elect a new Assembly. In the weeks which follow, attention is likely to be focused on reviving the Stormont institutions following the recent instability surrounding the Protocol and the resignation of the First Minister. However, the other institutions of the Belfast/Good Friday Agreement, designed to manage the British–Irish and North–South relationships, are underused and underdeveloped. Conor J Kelly and Etain Tannam argue below for the robust use of these strands of the Agreement to provide more constructive forms of political engagement.

The recent collapse of the Northern Ireland Executive and divisions over the Protocol have led to fresh questions about whether the Belfast/Good Friday Agreement has outlived its usefulness. This blog does not aim to defend or criticise the Protocol, but instead shows the continued importance of the 1998 Agreement for a divided society in the Brexit context. In particular, we highlight the continued relevance of the Agreement’s ‘three strands’ for democratic governance in light of the Protocol. Amidst deep concerns over whether it will be possible to form a new Executive after the elections to the Northern Ireland Assembly taking place this Thursday, the importance of these core features of the Agreement needs renewed emphasis.

Although the 1998 Agreement has been a great achievement in bringing about peace, it has been less successful in bringing about stable government. In addition, it has always faced challenges from some unionist critics and those most opposed to the Protocol are also opposed to the Agreement. The recent stand-off between the UK government and European Union on the Protocol has made those critics all the louder. Yet, many of the faults with politics since 1998 lie not in the Agreement itself, but in the failure to implement it robustly.

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The continuing constitutional pressures of Brexit

Ahead of the launch event for their new book on the continuing constitutional pressures of Brexit, Oran Doyle, Aileen McHarg and Jo Murkens summarise the book’s introductory essay. They conclude that, five years on from the seismic constitutional event that was the 2016 referendum, it is clear that Brexit is exerting pressure on various aspects of the constitution, but it remains too early to tell the full impact of Brexit on the UK constitution.

The United Kingdom’s withdrawal from the European Union was clearly a development of major significance that affected the UK constitution and its three legal systems, and brought about a series of political crises. But the prolonged process of negotiating the terms of withdrawal and the future UK-EU relationship also imposed and exposed a range of other constitutional tensions and pressures. This is true not only in respect of the UK itself, but also for the EU – which experienced a major recasting of its external borders, a recalibration of internal decision-making dynamics, and challenges to core features of its constitutional order – and in particular for Ireland – which, by virtue of its geographic position and constitutional history, has faced unique political and constitutional challenges as a consequence of Brexit.

In The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure, recently published by Cambridge University Press, scholars based in the UK and Ireland explore a wide range of constitutional, legal, and political issues affecting both countries which have arisen out of Brexit. These include questions of territorial governance within the UK, the renewed prospect and implications of a united Ireland, the use of constitutional referendums, the impact of Brexit on political parties, executive-parliamentary relations, and the role of the courts and law officers in constitutional disputes.

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The Fixed-term Parliaments Act did not cause the Brexit impasse

Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

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Renewing and reviving the Belfast/Good Friday Agreement

Alan Whysall, a member of the Working Group on Unification Referendums on the Island of Ireland, discusses the potential longer term constitutional destinies of Northern Ireland. He also analyses how we can ensure a more satisfactory debate, an ultimately more constructive politics, and the possible renewal of the Belfast/Good Friday Agreement. The first part of this blog, which prefigures a discussion paper from the Constitution Unit, was published earlier today.

Destinies

Since the Brexit referendum, the debate on the Union versus Irish unity has stepped up.

Some suggest we are at a tipping point, where change might come quickly, because of Brexit, lack of faith in London, fractures in politics, disappointed expectations of the Belfast/Good Friday Agreement – in Irish terms, perhaps, a period like the second decade of the twentieth century.

These developments may well have changed the political climate so far that reverting to the politics of five or 10 years ago is impossible.

But what we are heading towards is unclear. Fatalism would be a particularly misguided approach: there are no predestined outcomes, and certainly no panaceas.

The chances of things going well are much improved by informed debate, and by making every effort to sustain a constructive political process.

Without those conditions, we may well be on the road to nowhere, or a destination increasingly unwanted either in Britain or the South.

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