A change of regime in Washington is always likely to produce international repositioning. The sharp shift in tone and content now anticipated has already made an impact in the United Kingdom (UK), as elsewhere. After the result of the United States (US) election became beyond doubt on Saturday, the UK government moved swiftly to try and present itself as sharing much common ground with the incoming Biden administration, and by implication distance itself from the outgoing Donald Trump. Johnson and others within his government are aware that some in Washington, as well as in the UK and internationally, regard them as the UK branch of the same right-populist movement as Trump that, after years of ascendancy, has now suffered a major setback. They have not always sought to dispel such perceptions. But now it is useful to do so. In seeking to stress that it has more in common with Biden than Trump, the UK government has, for instance, emphasised a commitment to combating the climate emergency. But how credible is this attempt to disassociate from Trump from a constitutional perspective? Or is the Johnson approach to the constitution of a similar character to that of Trump?
The contexts are different. In particular, the UK is well known for having an ‘unwritten’ or ‘uncodified’ constitution, while the US has perhaps the most well-known ‘written’ constitution in the world. There are also important structural differences: most obviously for present purposes, the US executive is directly elected, separately from the legislature; while in the UK, government is formed out of and accountable to Parliament, with the composition of the elected Chamber, the House of Commons, determining who forms the UK administration.
But, notwithstanding the different frameworks within which they operate, it is possible to discern similarities of constitutional approach between Trump and Johnson. Both, for instance, attach exceptional significance to the concept of state sovereignty. They have objected to what they regard as unacceptable external restrictions upon their freedom of action, and stressed their willingness to withdraw from treaty commitments and major multinational organisations if they see it as necessary to safeguard their autonomy.
Trump and Johnson have also made a virtue of their willingness to test – and sometimes break with – existing norms as to what constitutes proper constitutional conduct (in the US case, the pre-Trump Republican Party had already shifted in this general direction, with Trump intensifying the tendency). This approach is a manifestation of their intentionally divisive political style, which seeks to maximise and benefit from cultural conflict. The claimed justification for such approaches is that that they are a means of representing the popular will, and overcoming an obstructive and anti-democratic elite. The insistence of Trump on claiming victory in the 2020 election, in the face of overwhelming evidence to the contrary, is a recent example of this approach; as are his efforts to enlist the courts in resisting his inevitable removal from the White House.
With Johnson, we have seen various controversial constitutional stances and decisions. In Autumn 2019, for instance, he conveyed the impression that he would refuse to adhere to an Act of Parliament mandating a specific approach to the Brexit negotiations. Around the same time, he drew the powers of the monarch into the realm of political dispute when his government advised the Queen (unlawfully, as it transpired) to prorogue Parliament. During 2020, the forced departure of various senior Whitehall officials has presented a challenge to UK principles of an impartial, career Civil Service. A further recent transgression of established standards has come with the introduction of a government bill avowedly designed to facilitate the violation of international law.
Behaviour of this type led Peter Hennessy and myself to speculate in a Constitution Society pamphlet last year that the so-called ‘good chap’ principle might have ceased to operate. According to this theory, basic norms are maintained within the UK system through senior politicians knowing what the rules are and choosing – out of a sense of social responsibility – to adhere to them: in other words, self-regulation. Any constitution – whether ‘written’, as in the US, or not, as in the UK – requires a degree of goodwill and self-restraint from those who operate it if it is to prove fully viable. Convulsions in the US during the Trump era demonstrate this point. But in the UK, given the constitutional prominence of tacit understandings that lack hard legal force, adherence among senior politicians to a shared corpus of basic understandings is even more important. The UK government, as we have seen, has shown interest in detaching itself from the trappings of Trumpism. Perhaps, as part of this project, it might consider adjusting its constitutional outlook, taking a more consensual approach to the system itself.