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Boris Johnson’s strange constitutional predicament

The author, a former government lawyer, is an FT contributing editor

These are strange constitutional times. A prime minister and his staff are under investigation by the Metropolitan Police in respect of potential breaches of the coronavirus lockdown regulations that the government imposed on the rest of us without an advance parliamentary vote.

This police probe is connected to an internal investigation of Downing Street by the cabinet office civil servant Sue Gray. It appears that the police investigation comes about after material was referred to them by Gray and her team of officials and government lawyers.

Under Gray’s terms of reference, if “any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police”. It seems the internal investigation may have found evidence that gives reasonable grounds to suspect criminal offences were committed. We can assume government lawyers would have advised on whether the appropriate threshold had been met for the police to be told. That would not have been done lightly.

What is perhaps most striking is how the situation is being kept from parliamentary scrutiny. For weeks, ministers questioned on it have said there cannot be answers because of Gray’s investigation. Now their excuse is that it is a police matter. Whatever else can be said of the Downing Street party scandal, there has been an absence so far of any formal accountability to either elected representatives or the public.

But formal accountability is one thing; practical political consequences are another. It seems as plain as a pikestaff that there is good reason to believe there has been wrongdoing at Downing Street — deliberate or not.

We have been given a sequence of unconvincing expedient reasons for the behaviour, ranging from there being no parties, through the prime minister being “furious”, to him saying no one had told him that rules had been broken. Ten-year-olds who kick footballs through windows come up with excuses that are more plausible.

There are precedents for police investigating Downing Street matters: 100 years ago, Scotland Yard looked into the buying and selling of honours under David Lloyd George; 15 years ago there was a probe into patronage with Tony Blair, then prime minister, being interviewed by the police (not under caution).

But those probes were into offences that could only be committed in a political context. What is different with this one is that it is in respect of the general criminal law. The prohibitions under the Covid-19 laws were those that everyone was supposed to know and with which everyone was supposed to comply.

So this new investigation is squarely about the rule of law and whether there is one law for ministers and their advisers and another for the public. At the time of the alleged gatherings in Downing Street, others were being fined and prosecuted for organising and attending parties.

It is difficult — though not impossible — to see how the prime minister could survive a decision by the police to issue him with a penalty fine, though it is unlikely he would face a more onerous sanction. Anyone who may have destroyed, or directed others to destroy, evidence by “cleaning their phones” may have reason to be more worried.

The police also have questions to answer. In lockdown, there was zealous policing and enforcement of the public health laws. But somehow in Downing Street, the country’s most heavily policed location, there seems to have been not a single police intervention in gatherings.

That the police do not readily involve themselves in political matters is a good thing. But the rule of law is also a good thing. So, with the accumulation of evidence, it was becoming unsustainable for the police to hold back from investigating Downing Street.

How this situation will, in constitutional terms, resolve itself is not obvious. On the face of it, Johnson is in a strong position, with his party having a substantial majority and a general election years away. The two investigations may “clear” him — or at least be framed by his supporters as exonerating him. He may survive.

But he has resorted to running his own whipping operation, outside the official whips office, and he is not receiving loud cabinet support. This does not seem sustainable. Political confidence within his own party has been lost.

His political position, is therefore weakened. With an “unwritten” constitution there are almost infinite ways in which prime ministers with apparent majorities can be removed without a general election — as, for example HH Asquith, Neville Chamberlain, Harold Macmillan, Margaret Thatcher, Blair and Theresa May. No one knows if and how he may go.

The police investigation and the Gray investigation may not themselves lead to the removal of this prime minister. That will be down to the decisions of others.

But what is going on, unseen, means Boris Johnson is in a position at least as weak as any prime minister in modern history. And yet, because of his political talent and opportunism, he may still survive. These are indeed strange constitutional times.


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