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Boris Johnson is endangering the UK's constitutional system of checks and balances

  • First published in : Visit Website
  • First published on: 22nd Apr 2022

I’m writing this column in my office in Westminster listening to the debate on whether to refer the Prime Minister to the Committee of Privileges to consider whether his recent conduct over the partygate saga amounts to a contempt of the Parliament. By the time you read this we will know the outcome. It does rather look like the Tories are deserting a sinking ship and so it will be passed. They’ve already dropped the amendment they had designed to try and kick the can down the road. 

I sat in the chamber during Ian Blackford’s speech and the Speaker made it clear he wanted to confine the debate to the immediate issue of whether the PM mislead the house in relation to the partygate saga and that he didn’t want to hear about the PM’s misconduct on other occasions. Far be it from me to question a ruling of the Speaker, but it did mean I had to put the speech I had written in the bin. There are good reasons for not generally being allowed to call other MPs a liar but I think the public are pretty fed up with a House of Commons where these social niceties constrain what we can say about what is blindingly obvious to everyone else. To be hamstrung in this manner made it pointless for me to try to speak in the debate. What follows is what I would have said had it been permissible.

The sorry saga of partygate is not the first time this PM has been found to have acted unlawfully and to have the misled the House of Commons. If we don’t act now he will do so again and again. Back in October 2019 when the PM was the leader of a minority government, he pulled the wool over the eyes of his own Cabinet and Her Majesty the Queen to shut down parliament so that he could stop it from scrutinising the almighty mess he was making of conducting the Brexit negotiations.

Fortunately, because of the legal action taken by me and other parliamentarians, the Inner House of the Court of Session saw through his bluster and concluded that his advice to the Queen had been “motivated by the improper purpose of stymying parliament”. The UK Supreme Court agreed with Scotland’s highest court that the prorogation had been unlawful, and parliament reconvened.

What greater contempt of parliament could there be than to shut it down unlawfully?  Yet when parliament resumed it failed to hold the PM to account for his actions and to remove him from office. We are now living with the consequences of that failure to act. Throughout the unlawful prorogation the PM’s behaviour was wholly lacking in integrity. He lied to MPs, including his own cabinet, about the reasons for the prorogation and he misled the Queen. He was forced to give documents to the Scottish court, which showed disdain for parliamentary democracy and a desire to lay a false trail as to the real reasons for the prorogation. 

No doubt that is why during the proceedings he refused to swear a written statement on oath in support of his position and why no other minister was prepared to do so either. Then, as now, Boris Johnson doesn’t much fancy the chances of a court swallowing his lies. I imagine that’s why he paid the fixed penalty notice even though he now claims that he did not think he was breaking any Covid rules because the gathering that he has been fined for, so far, was covered by the workplace exemption. If he really thought that excuse would fly, why not refuse to pay the fine and set out his defence in court? I reckon he did not do so because he was afraid of his record to date in the courts of both Scotland and England. Judges and juries, like the voting public, tend to have a pretty good handle on issues of credibility and reliability.

Unfortunately, parliament to date has been rather more forgiving. The failure of parliament to hold him to account for the unlawful prorogation has meant he has been able to continue with his lies and cavalier attitude to the law. Rather than a contrite response to the Supreme Court’s judgment we saw a combative one laced with denial. Over time this has been followed by repeated attacks on the legal profession, the judiciary and now proposals to restrict the right to judicial review of government actions and to render the Human Rights Act toothless and useless.

We have also seen a slew of legislation designed to curtail the rights of people resident in the UK and those who seek asylum or refuge here, legislation which breaches the European Convention on Human Rights and other international obligations such as the refugee convention. Just look at the Police Bill, the Nationality and Borders Bill and now the egregious proposals to deport asylum seekers to Rwanda, currently a dictatorship with a terrible record on human rights.

The high watermark of all this illegality was the Internal Market Bill which the PM’s Northern Ireland Secretary of State admitted was designed to break international law “in a very specific and limited way.” It led to the resignation of the Advocate General, Richard Keen QC and the Permanent Secretary of the Government’s legal department Jonathan Jones and to the trashing of the UK’s reputation in Europe and beyond.  

The problem of illegality is systemic in this UK government, and it comes from the man at the top. Whether Westminster can do anything about this is perhaps the most important test of the robustness and efficacy of the checks and balances in the British constitution that we will see in our lifetime. If the Tories keep this PM in office without a proper and public assessment of whether parliament was misled, if they do so for party political reasons and if they ignore the Ministerial Code, then it means that any party with a big majority is effectively an elected dictatorship, and the British constitution means little or nothing.  These are not my words but those of the respected political commentator Robert Peston.  We have a PM in office who not only has been found to have acted unlawfully by the UK Supreme Court but also found to have breached laws which he himself made. It is clear to any reasonable person that he also lied to parliament to cover this up.  If he does not suffer consequences for this, then British democracy is broken beyond repair.

The Constitution of the UK in its uncodified form cannot be an invisible rope behind which polite people dutifully queue, simply because it is the expected and respectable thing to do. The boundary is being tested and the PM is showing that if you have no respect and no honour the rope does not exist, and you can push your way right through. This is no way to run a country, the UK constitution’s checks and balances are in danger of becoming performative rather than providing an actual stop on executive power.

The problems in the British state are acute and reinforce my belief that Scotland should be an independent country with a written constitution. However, for now Scotland is part of this union and elects MPs to Westminster. Our constituents are disgusted by the way this PM carries on. He is bringing the UK into disrepute. Parliament needs to act.  

Joanna Cherry QC MP

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