Sir Stephen Laws

Senior Fellow, Judicial Power Project Read Full Bio

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Forty-eight hours that proved the UK’s unwritten constitution is fit for purpose

Jul 8, 2022

 

With dreary predictability, constitutional reform enthusiasts have begun calling for a codified constitution right after Boris Johnson’s announcement that he was stepping down from the premiership.

The well-rehearsed arguments all turn around the idea that the events leading up to his removal had constituted some sort of constitutional crisis, the result of the country’s uncodified political constitution, and that all of it could have been avoided had the United Kingdom’s constitution been codified (viz. set out in legally enforceable rules).

The well-known commentator Adam Wagner for instance attacked the roles of The Queen and Erskine May as “not a way to run a modern state”, whilst ex-minister Rory Stewart called for not only “a written constitution” but also “a new electoral system”.

There is little in these arguments, which all draw the wrong inference from the existence of a supposed crisis. As one learned legal philosopher once pointed out, “Machiavelli warned us… not to be fooled into thinking that calmness and solemnity are the mark of a good polity, and noise and conflict a symptom of political pathology.”

What the events of the past week have actually demonstrated is our uncodified system working entirely as expected, and both promptly and effectively.

There is nothing in the broad thrust of the way in which things have played out that is either surprising or particularly unusual. Indeed, it is striking that the three most electorally successful politicians of the past 50 years—the late Lady Thatcher, Sir Tony Blair, and now Mr Johnson—were all ousted by their own parties in very similar ways, instead of suffering electoral defeat.

Mrs Thatcher resigned as a result of pressure from Cabinet members, after winning a majority in a poll of the parliamentary party for the leadership – though not with the requisite margin to dispose of those standing against her – whilst Mr Blair did not even face a poll of his MPs, being instead forced out by the application of informal pressure by members of the parliamentary party.

A cursory examination of this week’s timeline shows an extremely speedy resolution of affairs once they had reached a head. The twin resignations of Sajid Javid and Rishi Sunak came on Tuesday; by the next evening around fifty ministers, ministerial aides and trade envoys had resigned, and by Thursday morning Boris Johnson had resigned as well.

It was a remarkably swift process, which brought to an effective end the prime ministership of a man who had led the Conservative Party to a landslide victory less than three years previously. In other words, the system worked, and worked quickly as soon as there was a consensus of political opinion to make it work.

Other more formal mechanisms are very unlikely to work more effectively or more speedily. In so far as our existing system has contained formalised processes of independent, impartial adjudication by individuals and institutions not  themselves sharing the electoral legitimacy on which the PM’s tenure depends  (Sue Gray, the Met, the PM’s Adviser on Ministerial Standards,  the Parliamentary Commissioner for Standards etc. ), they have understandably been less effective and certainly slower than raw political accountability to MPs, who do share that legitimacy.

The reasons are obvious. Such individuals and institutions are inherently hidebound by process issues and questions of construction about the precise wording of the legal parameters of what is and is not allowed. They also rightly feel it appropriate to give appropriate deference to democratic authority. These things all tend to create an irresistible bias in favour of the status quo, facilitate time-consuming delays and are capable of being exploited to be used as a shield from proper political accountability.

Any codified and therefore legal constitution would also necessarily involve more judicial involvement in events, which would be subject to all the same inhibitions and disadvantages. Events in Scotland, which has a more formalised and legally constrained system, have provided ample evidence of this phenomenon in practice.

Of course, there are other mechanisms for the removal of a head of government. But it is not clear how any of them could have led to an improved outcome during the past week.

Those who advocate a written constitution need to be clear to what extent they are advocating a mechanism that would have produced a different outcome, how it would have done so and why they think a Parliament enacting a written constitution would be likely to prefer it.

The only thing which would result from an attempt to codify rules that would have produced the same result, of course, is the creation of a significant risk that the effect in practice would not be the same, and so not what you intended. And the notion that it is possible to create a new constitutional system which is better in abstract terms without reference to the outcomes it will produce in practice is nonsense.

The current British system relies on a series of more or less formal mechanisms, which can be used flexibly to respond to any situation that may arise. In this case, the ouster of the prime minister was entirely accomplished through the political pressure created by resignations and the refusal of backbenchers to accept ministerial office. Everyone responded to the political imperatives to which they were subject to produce the outcome behind which there was irresistible political momentum.

In conclusion, there was nothing particularly unusual about the way in which the Prime Minister was effectively removed from office this week. Nor are these events evidence for the need for a written constitution. The prediction that our constitutional arrangements could not deal with what was seen to be the developing crisis have proved to be wrong. The argument that they need to be changed has no foundation. What has been demonstrated is the inherent practical advantages of the flexibility of the British constitution. Long may it continue.

Sir Stephen Laws

Senior Fellow, Judicial Power Project Read Full Bio

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