The chaos in No 10 proves that Britain cannot muddle along without a written constitution any longer

The increasing fluidity of the UK system – as the ‘gentlemanly’ norms of the past hold less and less sway – cries out for a set of written rules, writes Mary Dejevsky

Maybe there are, and always were, similarities between Johnson and Trump, in their political instincts, and their view of their own exceptionalism (AP)

Calm down everyone, the UK really hasn’t been experiencing its very own “Trump moment”. No one, not even Boris Johnson, was trying to seize power, defy an election result, nor act outside the constitution. Until, and including, the moment he resigned, the prime minister was “playing within the rules”. Everything proceeded as it should have done. Crisis? What crisis?

Thus runs what might be called the “establishment” view of recent events. It is also, of course, the Johnson defence – but it goes much further than any prime ministerial self-justification. Here, speaking on the BBC Today programme on Thursday morning, as the last act of the drama was unfolding, was Lord O’Donnell, a former cabinet secretary and self-appointed keeper of the constitutional flame.

Asked for his reaction to what was going on, he suggested it was all rather “bizarre”, but that, while it was “pushing our constitutional boundaries further than probably it should”, hey – “in the end ... our system is pretty straightforward and pretty robust”. So, no, he could reassure us, he did not think there was any “Trump” moment.

Pressed again, Lord O’Donnell commended the simplicity of the UK system, summing it up as: the prime minister remains in office for as long as he can control parliament and (in this case) the Conservative Party, and if he can’t, then he has to go.

Well, yes. But the country was, at that point, contemplating the resignations of more than 50 ministers and officials, including the chancellor of the exchequer, and the sacking of Michael Gove, the linchpin of Johnson’s “levelling up” policy, with a government essentially unable to function, as several departments were completely shorn of ministers. If this wasn’t a constitutional crisis, what is?

The idea that it was all basically fine and everyone would end up doing the decent, British, thing – which Johnson was, in fact, sort of about to do – smacked to me of the most extraordinary complacency. The historian, Sir Anthony Seldon, seemed to have a better handle on the reality of the situation when he said that no premiership in 300 years had “gone down in flames quite as spectacularly as this one. None has been so humiliating, so damaging, not just for the PM, but for the country”.

Indeed. But the fact that Boris Johnson was eventually strong-armed into announcing his departure should not be seen, as it already is being seen in many quarters, as vindication of our unwritten constitution. It is, rather, evidence that reliance on our old-fashioned way of doing these things – dependent on custom and practice, on a “gentleman’s word” and agreed standards of behaviour – is actually not adequate for the present age. And if it just about worked this time around, it might not work next time around. It is high time that we had rules, real, written rules, to regulate how government works.

Ah, yes, but – it could be objected – a written constitution is no guarantee, in itself, of anything, including safeguarding democracy: just look across the Atlantic. After all, was not a violent attempt made there by a defeated president to retain power, even to falsify the results of a democratic election? It would appear that one powerful individual, driven by pride, ambition, misplaced conviction or whatever, can ride roughshod over the rules as easily there, as here, perhaps even more easily, and to vastly more destructive effect.

Isn’t this what is emerging from the hearings of the special House of Representatives committee, which is currently examining the events of  6 January 2021, in minute-by-minute detail? And isn’t trying to hold on to power by any means, in defiance of constitutional norms, the accusation levelled against Boris Johnson and the parallel now being drawn between the conduct of the two leaders – hence the “Trumpian moment”?

Maybe there are, and always were, similarities between Johnson and Trump, in their political instincts, and still more in their view of their own exceptionalism. To argue that the US constitutional system provided no defence against violations by such a character as Trump, however, and that the UK’s less formal system of democracy is at least as robust as that of the United States, seems to me to draw precisely the wrong conclusions.

It has long seemed to me that many Americans, especially highly educated Americans of a Democrat persuasion, are far more disparaging of the quality of US democracy than they need to be. The US constitution stood up very well in the circumstances of the two “extreme” circumstances I have witnessed first-hand: the Trump presidency and the “tied” election of 2000. The checks and balances worked; this largely 18th-century constitution provided a stout defence of democracy.

Other weaknesses were exposed; Trump’s supporters were somehow able to breach Capitol security. The aftermath of the “tied” election became so contested because of the simple fact that Florida voting machines made a full recount impossible. But these were not weaknesses of the constitution, and the constitution did a creditable job as the last bulwark of democracy.

Trump’s power as president was, in fact, very effectively circumscribed by the constitutional balancing power of the courts, the legislature (Congress) and the people (in elections and popular protest). That Trump’s “coup” failed – if it deserves to be considered a coup, which I question – attests to the effectiveness of constitutional protections, as do the 6 January hearings currently in progress.

Following the Supreme Court’s latest judgment, reversing Roe v Wade – which effectively passes abortion rights back to individual states – new battles lie ahead. But the judgment will be tested, in the states, in Congress, perhaps up to the White House itself. And that is how it should be in a constitutional state.

The increasing fluidity of the UK system – as the “gentlemanly” norms of the past hold less and less sway – cries out for a set of written rules, in place of the body of law and inherited custom that prevails today. Johnson’s controversial attempt to prorogue parliament in 2019, for instance, was judged unlawful by the Supreme Court – a new institution that is at times assuming the role of a constitutional court, even though, unlike those countries which have such a court, we have no written constitution.

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Then there might be the question of where the prime minister derives his power from. In his bid to keep his job, Johnson cited his “mandate”. But – as his critics pointed out – he has no personal mandate; his party has a mandate to govern, having won a decisive election victory, and he had a mandate to lead the party, having been elected in the internal party system to replace Theresa May, and only recently seen off a no-confidence vote from his party’s MPs. But is it right that a party’s MPs can effectively remove not just the party leader, but the prime minister, whose party has an electoral mandate?

Lord Wood, a Labour peer, described Johnson’s appeal to his “mandate” as a “hugely dangerous... piece of constitutional on-the-hoofery by a PM in a parliamentary democracy with delusions of presidentialism”. But prime ministerial power has become increasingly personalised, and it is hard to see this trend going into reverse.

At a time of so many other upheavals, the country is now set for added uncertainty, with arguments about whether Johnson can really stay until a new party leader is elected, the destabilising effects on government of a leadership contest, and the arrival of a new prime minister with no electoral mandate.

The United States may be embroiled in its own “culture war” in the run-up to mid-term elections in November, but at least Americans have the benefit of constitutional safeguards that largely work. With political and cultural change afoot here as well, it is we, not they, who have something to learn.