This article is taken from the August/September 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
Boris Johnson will go down in history as a prime minister who played fast and loose with the rule of law. That’s a much broader concept than merely committing a criminal offence — though Johnson acknowledged having done that, too, by accepting a fixed penalty notice in April for breach of his own government’s lockdown regulations.
In August 2019, weeks after he arrived in Downing Street, the prime minister advised the Queen to suspend parliament for an unprecedented five weeks. A month later, the Supreme Court found this unlawful. Some in government thought the court’s judgment was poorly reasoned. But Johnson’s attempt to govern without parliamentary scrutiny showed a lack of respect for constitutional conventions that was to be repeated throughout his time in office.
His preferred Brexit deal left Northern Ireland outside the EU but within the EU’s single market for goods. To avoid the need for border checks between Northern Ireland and the Irish Republic, Johnson agreed with the EU that customs formalities would be completed as goods from Great Britain entered Northern Ireland.
When the Democratic Unionist Party found these arrangements unacceptable, Johnson’s government introduced a bill that was intended to break this binding legal agreement in “a very specific and limited way” — as his Northern Ireland secretary put it. The offending provisions were later withdrawn from what became the Northern Ireland Internal Market Act 2020, but not before one of the government’s law officers and the head of its legal department had resigned in protest.
A further attempt to break international law was made this year when the Northern Ireland Protocol bill was introduced. The government claimed, utterly implausibly, that a principle called the doctrine of necessity allowed it to override its treaty obligations.
To begin with, some ministers accepted that the aims — restoring power-sharing in Northern Ireland — justified the means. But there were limits. That may have been what Alex Chalk had in mind when he resigned from the government in July.
“To be in government is to accept the duty to argue for difficult or even unpopular positions where that serves the broader national interest,” he told Johnson. “But it cannot extend to defending the indefensible.”
Chalk had been solicitor general, deputy to the attorney general, Suella Braverman, and, I like to think, a restraining influence on her. Braverman, by contrast, was the most politically active attorney general we have seen in recent times, the first in 750 years to have a spad — a special adviser — of her own.
Johnson allowed her to remain in his caretaker government after she announced that she was a candidate to succeed him. But how could she have given disinterested legal advice to the prime minister she wanted to replace? How could she have given objective opinions on the lawfulness of government policies when she was attacking them in public?
The House of Lords constitution committee has been considering how far the law officers and the lord chancellor are “able to remain impartial, given their position in the executive branch of government”. If the committee concludes that it is no longer possible to have your cake and eat it, Johnson will be to blame.
Not content with making Dominic Raab deputy prime minister, Johnson indulged his lord chancellor by allowing him to introduce a curiously named Bill of Rights bill which promised more than it could deliver. Raab wanted to remain signed up to the European human rights convention while discouraging courts in the UK from complying with the way it has been interpreted.
Mark Elliott, professor of public law at the University of Cambridge, said Raab’s bill was based on a false premise: “that it is possible to legislate domestically in order somehow to manipulate or magic away treaty obligations that are binding upon the UK as a matter of international law.”
Lord Pannick QC was rightly scathing about the bill’s first clause, which said that “courts must give the greatest possible weight to the principle that, in a parliamentary democracy, decisions about the balance between different policy aims … are properly made by parliament”. Who would doubt that? “This reads not like a piece of legislation but like a speech to a Conservative party conference,” Pannick said. “It is a disgrace and it should not be in a bill.”
Braverman wanted to go further and leave the human rights court — which would mean quitting the 46-member Council of Europe. Making the UK a European outcast like Russia and Belarus was an appalling suggestion. But at least it would have allowed a future government to restrict our human rights in whatever way it chose, something that Raab had promised but could not deliver.
Johnson was notorious for supporting attacks by his ministers on “lefty human rights lawyers”. Through those he appointed and the policies they espoused, he encouraged voters to think that the judges were trying to thwart the role of parliament. It was in that sense, above all, that he undermined the rule of law.
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