23 April 2022

Why ‘Partygate’ May Be the Beginning of the End

On 12 April, the UK Prime Minister, Boris Johnson, and Chancellor, Rishi Sunak, received fixed-penalty notices for breaching Covid regulations, regarding their attendance at a surprise birthday party for the Prime Minister in the Cabinet Room in 10 Downing Street on 19 June 2020. Both paid the fine. Both apologised. Neither resigned.

These events took place when the House of Commons was in recess for the Easter break. On their return, the Prime Minister made a statement to the House, reiterating both his apology and his refusal to resign. He remained steadfast in his determination to cling on to power the following day when facing a barrage of questions during Prime Ministers question time.

The Leader of the Opposition, Sir Keir Starmer, was, however, granted permission to raise an issue of privilege, tabling a motion calling for an inquiry of the Privileges Committee into the Prime Minister’s conduct. After the Government had dropped its original amendment to that motion, calling for a delay to any vote until after the police had concluded their investigations and the Gray report had been published, the motion was passed without a division.

How are we to interpret these events? Are we over-reacting to ‘business as usual’? Is this the political constitution at work? Or, is Lord Hennessy right to classify these events as ‘the most severe constitutional crisis involving a Prime Minister’ in living memory, where he was ‘fearful for the well-being of the constitution’ as the Ministerial Code was not only not followed, but ‘shredded’? Is David Lammy correct to describe politics in the UK as a world where ‘populism rules everything’?

What these events demonstrate most clearly is the importance of the constitutional guardrails of mutual institutional respect and self-restraint in a predominantly political constitution – where most of the rules determining the respective roles of the executive and the legislature are found in conventions, rather than in a legally enforceable text. When these are bent out of shape, particularly when integrity is replaced with political might, then we are moving into extremely dangerous political waters – regardless of how many minutes were, or were not, spent at a party where cake may, or may not, have been eaten.

Is this the Political Constitution in Action?

It may seem absurd to conclude that ‘partygate’ is just another day in the UK’s political constitution. No other serving Prime Minister has been convicted for a criminal offence. Any consideration of the consequences of these actions focuses on the Ministerial Code, a set of conventions, first published under the title of the ‘Ministerial Code’ when Tony Blair was Prime Minister, most of these provisions deriving from an earlier confidential document, the Questions of Procedure for Ministers. As a series of conventions, the Code cannot be enforced by the courts. The Ministerial Code is clear: ‘Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister’ (Para 1.3(c)). The Prime Minister repeatedly told Parliament that no parties had taken place in 10 Downing Street and that he had followed the rules and complied with the guidelines.

The Prime Minister, in his statement on 12 April, said that ‘it did not occur to [him] that this might have been breach of the rules’. As reinforced by his statement to Parliament on 19 April and other responses, he had spoken in good faith as he did not believe at the time that the rules had been broken. Consequently, at least as far as the Prime Minister was concerned, there was no breach of the Ministerial Code; he had not ‘knowingly misled’ Parliament.

Even if there had been a breach, the Ministerial Code also makes it clear that the Prime Minister ‘is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’ (para 1.6). The Prime Minister, after consulting with the Cabinet Secretary, decides whether an alleged breach of the Ministerial Code warrants further investigation and, if so, he may refer this to the Cabinet Office or to the independent advisor on Ministers’ interests (para 1.4). Clearly, the Prime Minister believes there is nothing which warrants further investigation.

Is this the political constitution in action? The Prime Minister faced questions in Parliament. Motions were tabled, debated, and agreed to without a division. Backbench Conservative MPs could now initiate a challenge to his leadership; the leader of the opposition could table a motion of no confidence and, if this was lost, by convention the Prime Minister should exercise his newly revived prerogative power and request the Monarch to dissolve Parliament, triggering a general election. The criticism of the Prime Minister, even from his own backbench MPs during the debate on the privilege motion, can but show that the political constitution is alive and well.

However, if it really is the political constitution in action, it’s important to recognise that this exemplifies a specific version of political constitutionalism which prioritises the power of the executive. Parliament is there to shore up the Government, enabling it to implement its electoral mandate. This is justified not just because the Government needs to govern, but because its advocates regard the Government as the most democratic institution of the constitution, its powers being limited by backbench MPs, other members of Parliament, including members of the opposition, and, ultimately, the electorate. Is this really accurate?

Warped Constitutional Guardrails and the Seven Principles of Public Life

The UK’s particular blend of political and legal checks and balances places even more importance on constitutional guardrails. Mutual respect of constitutional roles is required to ensure effective checks and balances. This includes self-limitation. When the guardrails fail, there is a danger that the only remaining check is one of political might. How effective is the check over the Government from its backbenchers if those who dissent can have the whip removed and know that they will not be selected as a constituency MP in a future election? How effective a check is Parliament when Governments with a large majority can amend motions, control the parliamentary timetable, and usually win votes?

Conventions are not created by the courts. Nor can courts enforce conventions in and of themselves. The Ministerial Code is reissued with each new Prime Minister, providing the opportunity for its modification. It is an aspect of the UK’s political constitution. The Code is more in line with Dicey’s argument in favour of political as opposed to legal restraints on Parliament, which rely on internal as well as external limits on the actions of politicians. It was not only a matter of MPs not voting on matters that their constituents would not support – the external limits. Also, MPs would not act in a manner that was contrary to their conscience. They were elected, in part, on their character. Those ‘good chaps’ – in the words of Lord Hennessy and Andrew Blick – who could be trusted to act in a manner befitting of their office, especially if they became members of the Government. When Lord Hennessy refers to the shredding of the Code, he is concerned about how the Code is interpreted and applied.

The expectation that Ministers resign for knowingly misleading Parliament does not exist in a vacuum. Ministers are also ‘expected to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety’ (para 1.1). Moreover, the Code ‘should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public law’ including observing the Seven Principles of Public Life (Para 1.3): selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.

The Prime Minister did not comply with the law. This even led Justice Minister Lord Wolfson of Tredegar to resign, citing the ‘repeated rule-breaking’ and ‘breaches of the criminal law’ as his motivation. For Lord Wolfson, this behaviour demonstrated a disrespect for the rule of law, hardly complying with an overarching duty to comply with the law and to protect the integrity of public law.

Johnson’s Subjective Truth and the Role of the “British People”

The Prime Minister’s defence of his conduct focuses predominantly on either a subjective interpretation of ‘mislead’ or of ‘knowingly’. The Prime Minister did not mislead as he did not believe that he had broken the rules. In other words, truth is subjective: if I sincerely believe that this is a lawful gathering, then I’m not lying when I say it is a lawful gathering. Alternatively, the Prime Minister did not knowingly mislead as he did not think the party was unlawful. It does not seem to matter whether he ought to have known that the gathering was unlawful, or whether it was reasonable to know that the gathering was unlawful. Ignorance is no defence for a fixed-penalty notice. It would appear, however, that, at least as far as the Prime Minister is concerned, it is a defence for a possible breach of the Ministerial Code.

Does this mean that this provision of the Ministerial Code is now only breached when Ministers deliberately or maliciously mislead Parliament? If so, how is this compatible with integrity, objectivity, accountability, and honesty? What does it tell us of the principle of leadership and the current Prime Minister’s ability to ‘actively promote and robustly support’ the seven principles of public life?

Both the Prime Minister and the Chancellor referred to ‘the British people’ in their apologies. The Prime Minister felt ‘an even greater obligation to deliver on the priorities of the British people’. The Chancellor also stated that, in common with the Prime Minister, he was ‘focused on delivering for the British people at this challenging time’.

We can see hints of populist rhetoric even in the Ministerial Code. When it was reissued in 2019, it included a preamble from Boris Johnson as he took up his role as Prime Minister. This preamble does state that the Government ‘must uphold the very highest standards of propriety’, but this is in the context of ensuring the Government could fulfil its then mission – to deliver Brexit on 31 October 2020 – and ‘win back the trust of the British people’. To this end there must be no ‘misuse of process or procedure by any individual Minister that would seek to stall the collective decisions necessary to deliver Brexit and secure the wider changes needed across the United Kingdom’. It’s hardly the preamble you would expect in a document designed to uphold standards.

Looking Ahead and Looking Around

Populism is dangerous when the ‘will of the people’ is used to strengthen the powers of the executive whilst also weakening legal and political checks. It is when we place ‘partygate’ in its wider context that it takes on more importance. Two recent House of Lords Committee reports have drawn attention to the growth of the use of delegated and disguised legislation. The Dissolution and Calling of Parliament Act 2022 further transfers power (back) to the Government, returning to a maximum as opposed to a fixed-term Parliament and reviving the prerogative power of dissolution. Next week, we will see various Bills return to the Commons which modify judicial review, weaken the right to protest, and facilitate controls over immigration in a manner which the Joint Committee on Human Rights concluded would undermine human rights, including those protected by international law. The following parliamentary session may well also see a replacement for the Human Rights Act 1998. The direction of travel hinted at in the Government’s consultation exercise would suggest a weakening of judicial oversight of human rights from both the UK and the Strasbourg courts.

Is ‘partygate’ a storm in the teacup or is it the beginning of the end for the UK constitution? Only time will tell, but one thing is clear: If this is a revival of political constitutionalism, it is not one many would consider to be normatively justified. Political constitutionalism requires effective political controls, mutual institutional respect, and institutional self-restraint. When these constitutional guardrails are bent out of shape, political checks are no longer fit for purpose. This is how Johnson could stay in office – but at what cost to the UK constitution?

SUGGESTED CITATION  Young, Alison: Why ‘Partygate’ May Be the Beginning of the End, VerfBlog, 2022/4/23, https://verfassungsblog.de/why-partygate-may-be-the-beginning-of-the-end/, DOI: 10.17176/20220423-182125-0.

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