The Economist - UK (2022-06-04)

20 Britain The Economist June 4th 2022

S

omething is shiftingin West-

minster. In January, when the scandal

over parties held in Downing Street

during covid-19 lockdowns flared, some

Conservative mps talked of ousting Boris

Johnson. A vote of confidence in Mr

Johnson’s leadership would be triggered

if 54 Tory mps send letters demanding

one to a party grandee. That threshold

was not met; the moment passed.

Such a contest now looks rather more

likely, even if Mr Johnson would still

have a good shot at winning the ballot

that would follow. Around 30 mps have

publicly called for him to quit; more have

expressed unease about his leadership.

Dissenters seem to be evenly spread:

from northern and southern seats, new-

bies and greybeards, from the right-wing

and moderate flanks of the party. More

mps are planning to test the mood of

their constituents over this royal jubilee

holiday weekend; depending on what

they hear on doorsteps and at fetes, they

may add to the no-confidence letters.

What has changed? Sue Gray’s report

into the Partygate affair, which was

published on May 25th, was lurid enough

in its descriptions of Downing Street

drinking to anger the public, yet too

patchy to provide the catharsis that mps

hoped for. Details continue to trickle out

about a gathering said to have been

organised by the prime minister’s wife,

which Ms Gray chose not to investigate.

His independent ethics adviser has

reportedly been mulling resignation.

At the same time growing numbers of

mps think that the party cannot win the

next election under Mr Johnson. The

Tories’ polling has hovered in the mid-

to-low 30s since January; a poll number

in the 20s would be widely interpreted as

irreparably bad. A £15bn ($19bn) package

of handouts to protect families against

inflation that was announced by the

government on May 26th has made little

political difference. For fiscal discipli-

narians on the Tory benches, that’s a lot

of buck for no bang.

Many mps had used the war in Uk-

raine as a pretext for not moving against

Mr Johnson. But the war exerts a weaker

grip on their attention now. The critical

moment may come on June 24th, the day

after two by-elections in England that the

Tories are widely expected to lose. It may

come sooner. It may not come at all.

That the process is so opaque is a

result of changes in 1998 to the rules for

Tory leadership contests. Previously,

rebels would simply organise a direct

leadership challenge, as Michael Hesel-

tine did against Margaret Thatcher.

Democratising the system has produced

a lottery: since only one person knows

how many letters have been sent, no one

else can be sure if or when the contest

will begin. If it does, there is no consen-

sus over who should replace Mr Johnson.

The uncertainty is thrilling Westminster

and paralysing the government.

Boris Johnson’s future

What changed?

The prime minister’s position looks more precarious

called the decision a constitutional coup.

In the election campaign that soon fol-

lowed, the Tories promised a constitution-

al review to prevent the courts from being

“abused to conduct politics by another

means” and to “restore trust in our institu-

tions”. Ministers mused about changing

the court’s name. Dominic Raab, the justice

secretary, has since proposed new reforms

to the human-rights act. He intends to halt

the “incremental expansion of a rights cul-

ture without proper democratic oversight”.

This is a restorationist agenda, seeking to

revive an older constitutional orthodoxy

which stresses the supremacy of Parlia-

ment and the ability of ministers to exer-

cise discretion without a judge looking ov-

er their shoulder.

Talk of reviews and name changes has

subsided at the same time as the court has

taken a more restrained approach. “The

idea that we have gone soft on the govern-

ment or we are reluctant to find against the

government is completely without foun-

dation,” remarked Lord Reed recently. But

he added: “What has been perhaps more

evident in our judgments is greater respect

for the separation of powers.”

Take the case of Shamima Begum, a

Briton stripped of her citizenship after

travelling to join Islamic State in Syria. In

February 2021 the Supreme Court upheld

this decision, reasoning that the govern-

ment’s view that Ms Begum was a security

risk demanded respect from the courts be-

cause the home secretary was accountable

to Parliament. Or that of Margaret McQuil-

lan, the sister of a Northern Irish woman

shot in 1972; British troops were suspected

to have been involved. In December 2021

the court asserted a firm cut-off date for in-

vestigating historic human-rights abuses.

The Supreme Court has also taken a dis-

tinctly limited view of the powers of de-

volved parliaments, emphasising the tight

constraints imposed by Parliament in

Westminster. That makes any legal bid by

the Scottish government to force an inde-

pendence referendum in 2023 look much

less likely to succeed.

Views differ on what is happening. Co-

nor Gearty, an academic and human-rights

barrister, points to a change in leadership.

On this view, judges such as Lady Hale took

a more flexible and imaginative approach,

taking into account the life experiences of

litigants and the good of society. Mr Gearty

sees the court under Lord Reed as taking a

more old-fashioned, “formalistic” ap-

proach, focused on narrow legal questions.

Jonathan Sumption, who served on the

court from 2012 to 2018, thinks the new or-

thodoxy predates Lord Reed’s term, and is

shared by a generation of talented judges.

The prorogation decision under Lady Hale

wasn’t a case of extreme judicial activism

at all, he says. Sometimes defending the

will of Parliament means standing up to

overweening governments. At other times

it means pushing back at campaigners

seeking to change government policy.

Others see a court shielding itself from

a harsh political climate. Lord Reed and

Lord Burnett, the head of the judiciary in

England and Wales, seem to think it is

“constitutionally unwise for there to be a

sense of conflict between the judges and

the executive,” says one senior lawyer. Lord

Reed has sought to mend bridges with mps,

patiently reassuring them in meetings that

he understands the court’s role. In a speech

on May 30th Lord Burnett said: “Judges

should be allergic to politics.”

Politics has a habit of seeking judges

out, however. One idea in the Tory ether is

to give Mr Raab more discretion over pick-

ing judges (at the moment he approves or

rejects a single candidate picked by an in-

dependent panel). Growing attention is

paid to the decisions of individual judges,

and attempts are made to categorise them

as activists or conservatives. That worries

liberals, who fear the independence of the

judiciary is under threat, but it is also an

inevitable product of the court’s impor-

tance. With status comes scrutiny. 

Veil of ignorance

“How much, if anything , do you feel that

you know about each of the following?”

Britain, May 2022, % responding

Source: Ipsos

2

The work of the UK

Supreme Court

The UK constitution

How laws are

made in the UK

100806040200

Never heard about Don’t know

Not very much Heard but don’t know about

A great deal A fair amount