October 19, 2021

Saving Break

Break Through With Legalicy

Boris Johnson and the erosion of the rule of law

It is truly dizzying to live in the UK these days, if you have a good memory. Life under the Johnson government means that whatever they tell you today, it will all have changed by tomorrow. Whatever you remember, it never happened like that. What Johnson did was not as it seemed, or it was someone else’s fault. Boris Johnson came to power thanks to lies, half-truths and sleights of hand. Back in 2019, his friends in the Conservative Party and his critics who cared about the future of the United Kingdom all hoped that he would not be able to continue in that vein as Prime Minister.

Eighteen months after his triumphant election victory, the opposite is the case. Johnson has remained true to himself and is now more popular than ever before. In the wake of the pandemic and the UK’s successful vaccination campaign, nothing seems to stick: his catastrophic mismanagement at the beginning of the pandemic, his fractured relationship with the truth and even the frequent cases of corruption within his cabinet. Furthermore, the growing damage done by Brexit to the British economy is rarely discussed in the country. Even his government’s increasingly authoritarian assaults on citizens seem to go unnoticed by the public. Johnson has shifted some in his party so far to the right that attacks on the justice system and the media are part of everyday life, with potentially fatal consequences for parliamentary democracy in the UK.

Will this situation change once the country escapes the shadow of the pandemic, which is currently obscuring the wider picture? There is good reason to believe that will not happen.

In any case, the actual lies are only part of the problem; the bigger issue is the blurring of the truth behind the bullshit, as the American philosopher Harry Frankfurt deduced as far back as the 1980s. If you lie, you must know the truth, and keep an eye on the facts as your reference system. That way, truth ultimately retains its validity. The bullshitter, on the other hand – and Frankfurt believed this to be key – is indifferent to the truth; he simply takes liberties with truth and facts. He is not interested in “reality”. He is only interested in making his claims stick. He manipulates everything to suit his cause, in order to hide the fact that he is up to no good. He obscures the facts as points of reference and by so doing undermines the political culture of a democracy that depends on the distinction between what is true and what is false.

Here is an example. Since the success of the British vaccination programme Johnson has not tired of extolling that success at every opportunity as the first big Brexit benefit. Yet the decision to go it alone was in fact arrived at and implemented during the transition period – a modus operandi which all EU member states were free to choose if they wished. One could of course say that had the UK still been a full member of the EU, the country would have signed up to joint programmes with the other European nations, and that vaccination would have been slower, but that would be pure speculation. The distortion of the facts, however, caused a false picture to emerge that has taken hold in the public consciousness.

This blurring of the facts functions in a similar manner with the post-Brexit trade deals. These are so far mostly carbon copies of the existing EU deals have been sold to the nation as new ones that are better for the country, and trumpeted on social media using spurious facts. The mood music to all this can then be heard in the big tabloid newspapers, which were the driving force behind Brexit. Trade deals have so far not really been judged in terms of their real benefit to the country; they are simply rhetorical props in the great Brexit spectacle. The reality behind them is fading from view.

The same is happening on the international stage. What was formally agreed yesterday is no longer valid today. The new reality is simply superimposed on the old. The Northern Ireland minister Brandon Lewis, for instance, warned the EU that Brussels must find a solution to the unrest in Northern Ireland, otherwise the whole Brexit deal was at risk. The background to this was that thanks to Johnson’s Brexit deal the EU external border now runs through the Irish Sea between Northern Ireland and Great Britain. This has led to frequent delays at customs in Northern Ireland resulting in severe goods shortages. That was the price that Johnson – unlike his predecessor Theresa May – was willing to pay to get the troublesome issue off the table. For years trade experts had repeatedly warned of the problems this would cause Northern Ireland, but they were consistently ignored.

[see also: Boris Johnson’s clever trick to get away with anything – even the Covid catastrophe]

As late as early March the same Brandon Lewis had declared the problems in Northern Ireland were “teething problems” which could be soothed away. Johnson himself had – though he must have known better – repeatedly promised that there would be no border whatsoever and urged Northern Irish businessmen, live to camera, to simply bin any customs forms in future. However, there is no avoiding reality, so the problems are suddenly the fault of the EU. What a breathtaking, if predictable, 180-degree turn. As if Brexit had never taken place, the EU as scapegoat is suddenly resurrected and made responsible for the deadlock. What is even more surreal is the implied assertion that the deal the British government had signed and sealed itself had never been negotiated or agreed in that form. The list of the Johnson government’s distortions, half-truths and outright lies is endless. Truth is a currency that is being devalued almost on a daily basis and for that reason, very few Brits make the effort to keep up with it all.

Boris Johnson’s pathological relationship with the truth

One person who does observe the situation closely is Peter Oborne, the journalist and former friend of Johnson’s, who continues to claim loyalty to the Conservative camp. He is one of those many homeless Tories who have no place in Johnson’s new right-wing nationalist party. In his most recent book, The Assault on Truth, Oborne has impressively documented Johnson’s pathological relationship with the truth and simultaneously sent a long list of the Prime Minister’s lies and truth-twisting to the Speaker of the House of Commons. He has to date received no proper reply from him. And of course the country’s dominant Murdoch press – one of the key drivers of Brexit and the country’s decoupling from the continent and its democratic values – has not even mentioned the book, let alone reviewed it.

Oborne makes an important point which illustrates what really drives Johnson and his co-Brexiteers: “While there is no doubt that Johnson is both deceitful and amoral, the Prime Minister’s war on the truth is part of a wider attack on the pillars of British democracy: parliament, the rule of law and the civil service. There is a reason for this. Truth and liberal democracy are intertwined.” If a nation wishes to call its government to account, it needs to have access to objective truth, to verifiable facts. When that access is destroyed by an unassailable executive, there is the danger of an authoritarian government in the guise of democracy. Poland and Hungary have shown the way. Oborne believes that the UK government has already crossed that line and he is not alone in thinking this. The Johnson government has long wished to weaken the British justice system’s ability to monitor the executive.

In an open letter last October more than 800 top-level lawyers and judges, including three former Supreme Court judges, called upon Johnson and his government to cease their attacks on the justice system and the rule of law immediately. The Home Secretary Priti Patel had previously branded all of those lawyers preventing illegal deportations sanctioned by her department as “lefty human rights activists”. Johnson backed her on the issue. What is even more important is the fact that a few months earlier, he had announced the establishment of a commission tasked with redefining the Supreme Court’s remit and the limits of judicial review of the executive’s actions in general. This was a barely concealed act of revenge for the Supreme Court’s ruling against Johnson’s hasty, illegal proroguing of parliament in the autumn of 2019. That was, if you will, his first transgression on the path towards an authoritarian style of government, but one which the Supreme Court was then able to reverse.

The commission, which was supposed to overhaul the Supreme Court and to limit the influence of the justice system, has now presented its report. Its chairman, former conservative justice minister Lord Faulks, came to the conclusion that the courts had by no means exceeded their powers, and had not intervened more frequently in political issues than in the past. He therefore proposed only minimal changes to the prevailing legal situation – clearly a disappointing result for the Johnson administration. After all, Justice Secretary Robert Buckland then cast a very different light on the report. The results of the report made it clear, he told the House of Commons, that there was an increasing willingness on the part of judges to expand their remit in the direction of politics, and that that was worrying. Whereupon a surprised Lord Faulks replied a little later on the BBC that Buckland’s conclusion was in no way consistent with his report.

But Boris Johnson, it seems, never intended to accept an outcome that would contradict his aim of curtailing judicial powers. And so the Ministry of Justice is currently preparing another way to escape interference by the legislature. In future, laws are to contain “ouster clauses”, which simply place them outside of the legal system. Buckland justified this in an ITV interview: “I don’t want to see our judges, particularly those of the Supreme Court, being drawn in to a political arena, in a way frankly they wouldn’t want to be and [which] would be bad for the balance of the constitution.” In this year’s Queen’s Speech presented at Westminster in May this went as follows: “The government intends to restore the balance of power between the executive, legislative and judicial branches.”

Lawyers across the country reacted with alarm. Mark Elliott, one of the UK’s leading constitutional lawyers, said such a law was an attempt to completely exclude the judiciary from judicial oversight of the executive branch, while at the same time claiming to strengthen the rule of law. “Even in a post-truth age, such constitutional gaslighting cannot be allowed to go unchallenged.”

The crucial question now is who should publicly address these attacks and repel them. The fact is that British democracy is poorly equipped against attacks of this kind. Unlike in the US, where the Trump era has (for the time being) ended, there is no formal system of checks and balances in the UK, no coherently written, codified constitution that can be applied in times of crisis. Instead, the British constitution is a fragile fabric of conventions, age-old rules and precedents with no clear framework to determine what applies when, and by whom it is decided. So far, it has worked according to the “good chaps principle”, that is, the assumption that politicians with moral integrity would interpret the essence of this muddle correctly. The British are ultimately dependent on the goodwill of the government they have elected. A prime minister who deliberately chooses not to adhere to the rules and spirit of this unwritten constitution, or who even seeks to actively undermine its principles, is an unforeseen circumstance with no effective remedy.

Vulnerable democracy

In November 2019 two renowned constitutional lawyers, Andrew Blick and Peter Hennessy, published a report for the Constitution Society entitled “Good chaps no more?” which looks back over the period since the Brexit referendum and comes to the following conclusion: “The executive has for more than three years exhibited patterns of behaviour that are troubling and ominous regarding the sustainability of constitutional norms and standards of behaviour in the UK.” The urbane English understatement can barely conceal real concerns about the rule of law, and the report’s conclusion is explosive. According to the authors, the unwritten British constitution is a dangerously unreliable foundation in the age of populism. Lord Neuberger, the former President of the Supreme Court, even sees Great Britain potentially lurching towards dictatorship under the Johnson administration. 

Of course, things aren’t that bad yet. Britain is still a long way from the situation in Hungary or Poland, but there is nevertheless much that is reminiscent of the beginnings of Viktor Orbán or Jarosław Kaczyński. Systematic effort to disable the oversight of the executive branch is inherently authoritarian and in the early stages of such developments hits both the judiciary and especially the media. This is now happening in the UK too.

Future generations are going to wonder how a shameless Prime Minister with only a passing acquaintance with the truth could have got away with it so easily in one of the oldest Western democracies. The answer to that question is complicated, but the British media have played a significant role in all of this, having increasingly failed in their duty to hold the government to account. Even before the Brexit referendum, by far the greater part of the British press exercised little or no corrective function. Since the 1990s, the key aim of media entrepreneur Rupert Murdoch in particular had been to ensure Britain’s isolation and alienation from the EU. Tabloids such as the Sun and the Express, but also quality newspapers such as the Times and the Telegraph openly supported Johnson from the start, despite the fact that they knew him to be a liar: after all, the Times had fired him in the late 1980s over a fabricated quote. But that didn’t bother the owners and publishers of the great British print empires: Murdoch, the Barclay brothers, and men such as Paul Dacre. On the contrary, that is precisely why they recognised Johnson as the perfect vehicle for an ideological project that could hardly have been won with real, truthful arguments. To this day, the numerous lies of the Johnson administration have seldom made headlines in swathes of the British press.

At the beginning of the Brexit campaign it was different with the BBC, which at the time was largely serious about its role as a critical counterpart in the political sphere. But that was soon to change. The BBC showed less and less willingness to expose the lies of the Brexiteers, instead giving them and their opponents exactly the same amount of airtime, a method that is likely to go down in media history as a false balance and which led to Johnson and his colleagues being able to spread their misleading claims essentially uncorrected.

If the BBC leadership had hoped that this strategy was a way to escape unscathed the increasing pressure from the Tories in the heated atmosphere of the referendum and its aftermath, they were wrong.

Just two days after Boris Johnson won the general election in December 2019, his government apparatus came out all guns blazing against the broadcaster. The Treasury Secretary said that the “compulsory nature” of the BBC licence fee should be re-examined. Johnson himself had already asked during the election campaign whether the BBC should not be privatised, and now the Minister for Culture followed suit. This marked the beginning of a campaign against the broadcaster, which was soon more strident than many of the previous campaigns. And so the public threats were followed very quickly by concrete steps. In the summer of 2020 Downing Street leaked the intention to appoint Charles Moore as the new chairman of the BBC – a Tory who had regularly professed to be the chief opponent of the public service system and had even been convicted in court for refusing to pay the licence fee.

Some while later he withdrew the appointment. Instead, however, the post went to Richard Sharp, a board member of the right-wing think tank the Centre for Policy Studies, and also a close confidant of the government. Coincidentally, he had donated the equivalent of almost half a million euros to the Tories in recent years. This is clearly at odds with being an independent chair. And that is the real problem for the BBC in this day and age. When, after the war, the British set in place a federal-based public service broadcasting system for the Germans, they ensured that centralised access to a national broadcasting system by politicians would no longer be possible. Back home, however, they did not view such considerations as necessary at the time. As a result – in a similar vein to the unwritten constitution – there are no binding rules that guarantee the independence of public service broadcasting in Great Britain or, more generally, the freedom of the press in times of crisis.

Power over the media

The Johnson administration now wants even the weak supervisory bodies, with their limited powers, to be “on message”. The latest gambit in this regard is the nomination of Paul Dacre as head of Ofcom, the media regulator.

That is because Dacre, the long-time editor of the Daily Mail, is a serial offender when it comes to breaking rules of decency and ethics in British journalism. When, in 2016, three judges at the High Court ruled that Brexit could not simply be implemented on the basis of the “the will of the people” without parliamentary involvement, the title page of the Mail featured photos of the three judges and the headline “Enemies of the people”. This could scarcely have gone to print without Dacre’s approval. He has hardly been more lenient with the BBC. For years the corporation has been his newspaper’s number one enemy: in a vociferous and unrelenting war of aggression, he lobbed absurd accusations at the broadcaster, such as suggesting it peddles a kind of “cultural Marxism”. Johnson now wants to put this man in charge of the media regulator Ofcom, despite considerable opposition. In fact, there is a selection committee for this position. After the committee arrived at the unanimous decision that Dacre was not a suitable candidate for the post, something happened that is typical of the Johnson administration: instead of looking for a new, more suitable candidate, the commission was simply dissolved. In the summer, after being re-constituted, the committee is to start work all over again. This represents a wholly unusual direct intervention by the government in standard procedures. The Financial Times reported that the ministers involved firmly believe that Dacre will apply again. 

All of this, of course, has implications for the BBC and its reporting. And it is perfectly possible that threatening figures such as Dacre are brought into play mainly for the expected chilling effect. In any event, the government’s relentless threats have already struck home. The BBC has grown noticeably more cautious and fearful when reporting on the Johnson administration. For example when, at the beginning of a broadcast in May 2020, the well-known presenter of Newsnight, Emily Maitlis, criticised Johnson’s then-chief adviser Dominic Cummings, who was caught breaking the lockdown rules he had introduced, she was admonished. The next morning BBC management apologised in a public statement for Maitlis’s comments. Not that anybody had spoken to her or the editorial board.

There was a similar overreaction in May this year. When the BBC admitted that one of its reporters had gained access to interview Princess Diana under false pretences 25 years ago – an admittedly disturbing act, albeit one that goes back almost a generation – ministers were allowed to attack the BBC’s current management for days on end, on BBC programmes, threatening the broadcaster with far-reaching consequences. The TV presenters, in what often amounted to downright masochistic subservience, practically seemed to be urging such consequences to be invoked. The numerous failures, mistakes and lies of the Johnson administration, however, are addressed much more sparingly or not at all. What is particularly striking here is the virtually non-existent reporting on the increasing cases of corruption within British ministries. When Alastair Campbell, Tony Blair’s former press spokesman, pointed this out recently on the BBC, the presenter replied: “But do people care?!” That suggests an acceptance on her part of the government’s own spin and a blatant misunderstanding of her role. Indeed, should that indeed be the case, the first task of the BBC would be to make sure that the “people” do care, a lot. After all, this is about the potentially illegal shifting of billions in taxpayers’ money.

Corruption everywhere

Which brings us to the next clear indicator of the impending decline of democratic structures: corruption. Wherever control of the government by the judiciary and independent media is no longer guaranteed, the risk of systemic corruption grows. This now seems to be happening in the UK. At the beginning of the pandemic, almost unnoticed by the public, the government passed the Coronavirus Act, which allows it to introduce regulations without parliamentary scrutiny. The government used this situation to establish new public structures in the health system under the direct control of the ministries, the largest of these being the Test and Trace system, which to date has devoured the unimaginable sum of £37bn. Essentially, it is a kind of shadow state within the healthcare system, operated by private entrepreneurs without public control.

[see also: How the UK-Australia free trade agreement is worth 200 times less than EU membership]

To date, the government has not provided any detailed information about what these funds were spent on. In addition, more millions of taxpayers’ money went on masks and protective clothing – without any transparency and bypassing the legally prescribed tendering routes – from companies that were completely inexperienced in the production of such equipment, but who appeared to have a direct line to the government via a VIP line to Downing Street. For the past few years, this type of corruption case within government has been documented by the “Good Law Project”, a crowdfunded project run by lawyer Jolyon Maugham. Twenty cases are currently making their way to the courts. The government’s answer? It lodged futile but expensive counter-challenges against Maugham at the taxpayer’s expense and then declared with unrivalled cynicism that Maugham’s lawsuits against the government would need to be abandoned because they were too expensive for the taxpayer. The word is that appropriate legislation is currently in progress.

The increasing attacks on the judiciary and the media and the rampant corruption behind them are no secret in the UK. Anyone who wishes can read all of this somewhere and then be rightly alarmed about the state of British democracy. And yet that hardly happens any more, as Dominic Cummings recently discovered to his cost – and he was the top spin doctor of the Brexit campaign, who stepped down amid controversy, and who was largely responsible for Brexit, using aggressive and dubious methods. Giving evidence to a joint inquiry, he described in detail all the lies, the brazen behaviour and cynicism of the Johnson administration during the pandemic. But not even the opposition really had the strength to call on the ministers concerned to resign. A few years ago they would at least have gone through the motions. After all, even if one may rightly argue that this was just a posthumous attempt at revenge by just another spurned spin doctor: much of what Cummings described corresponds to facts that have long been known to the public.

Against the truth as the currency of democracy

But how could it all fizzle out so easily? Why did nothing of what Cummings put forward resonate in the public arena? The answer is relatively simple: because Cummings fell victim to his own strategy. It was he who, together with Johnson, first ushered in the post-truth era in Great Britain, thereby destroying the very basis on which a minister, or even Johnson, can still be held accountable. To be able to do that, you need truth as your currency, the distinction between right and wrong, as a valid criterion in the democratic dialogue. Instead, Cummings experienced first hand what happens in such a misguided society if you try to pursue a government with fact-based allegations: nothing, any more.

With that, Cummings has no doubt served his purpose for Johnson. That is because from the outset, Brexit was for Johnson solely a route to holding the levers of power. He probably secretly hoped that the expulsion of his anarchic chief adviser meant he could now leave the dirty part of the business behind him and simply rule as normal from now on. That, however, is not going to happen, much as Johnson himself may have longed for it. Firstly, because Johnson is not a normal politician himself: his entire life to date has consisted of breaking rules and crossing legal and ethical boundaries. He succeeded in making it to Downing Street thanks to the Brexit campaign and the destructive power inherent in the project. As the Cummings hearing showed, the consequent blurring of empirical reality can no longer be reversed in the foreseeable future. And the fact that Johnson has got away with it with such success will no doubt reinforce his belief that he is untouchable and encourage him to further advance his specific form of British populism.

The second reason why an early return to “normal” British conditions can hardly be expected is Brexit itself. As a deeply ideological project, it lacks any real perspective as to where and into what better world the people’s regained sovereignty should lead the country. Five full years after the referendum was won, for example, there is still no coherent trade strategy. Leading Brexiteers are now more or less openly admitting this. The only prospect of a new trade agreement so far is one with Australia, which is estimated to boost UK GDP by 0.02 per cent over 15 years, while the EU, one of the largest free trade areas, and one on Britain’s doorstep, continues to be painted as an opponent.

The UK’s new sovereignty remains a show for the benefit of the governing party and its voters, in which the main character, Boris Johnson, has turned his back on reality and has to entertain the confused audience with large and increasingly authoritarian gestures to distract them from the political vacuum that his Brexit offers. Politics becomes a hollow formula, a flurry upon flurry of headlines that blur in the public consciousness as quickly as yesterday’s news. The destruction of the foundations of democratic culture is accepted as lightly as the repercussions for the cohesion of the United Kingdom. In Scotland, for example, this essentially English nationalism is currently reigniting the independence movement. As recent polls show, a large proportion of English Tory voters are increasingly indifferent to Scotland as part of the Union.

And so it is not unthinkable that Johnson will end up being the last Prime Minister of the United Kingdom and instead go down in history as the uncrowned king of a democratically dubious Little England. In retrospect, British democracy would then have been nothing more than what it already is for many of its critics due to its vulnerable, unwritten constitution: a beautiful illusion that worked brilliantly as long as everyone wanted to hold on to it.

This essay first appeared in German in the July issue of the politics magazine Blätter.

Annette Dittert is the London bureau chief and senior correspondent of the German public broadcaster ARD. She was previously bureau chief for ARD in New York and Warsaw.

Translation: Janet Berridge, Berlin

[See also: The best way to reset UK-Germany relations would be a change of government in London]