In May 2016, David Cameron’s government passed more contentious and far-reaching pieces of domestic legislation into law than either Theresa May or Boris Johnson have managed in the more than 1,500 days since. The 2016 Trade Union Act, which sharply limited the ability of trade unions to go on strike, received royal assent, as did the Immigration Act, which boosted the hostile environment immigration policy, and the Housing and Planning Act, which opened up housing association properties to the right-to-buy scheme.
All three bills were bitterly contested by Labour, the Liberal Democrats and large swathes of civil society, and represented major advances in Cameron’s revolution. They comprised the final stage of his political achievement: thanks to a combination of sincere social liberalism and a carefully cultivated posture as a right-thinking, upper-middle-class father to the nation, Cameron was able to continue Margaret Thatcher’s political project, in some places going further than she ever dreamed.
In the intervening years, parliament voted to trigger Article 50 to leave the EU and then to extend the transition period. Some other significant pieces of cross-party legislation – to simplify the arcane divorce process, to add much-needed weight to domestic violence law, and to ban the practice of taking photos up people’s skirts in England without permission – have also been passed. But, beyond these, it is difficult to point to a distinct legislative achievement since June 2016 that would look out of place had Ed Miliband won the 2015 election, or had Jeremy Corbyn triumphed in 2017 or 2019.
The most significant divide among Conservative MPs isn’t between Remainers and Leavers, because the most committed pro-Europeans have either been purged or have retired voluntarily. It is between those who think that Johnson’s political approach, and its divergence from the recent past, are worth putting up with to secure not only Brexit but the “right” form of Brexit; and those who think that something essential to the character of the Conservative Party is being sacrificed, perhaps permanently lost. The government’s Internal Market Bill, the device by which Downing Street plans to flout the EU-UK Withdrawal Agreement it signed in January, is an illustrative example.
The “prize” contained within the Internal Market Bill is twofold. First, there is no route to signing a trade deal with the EU that doesn’t involve maintaining the open and largely frictionless border between Northern Ireland and Ireland. That requires either a large degree of regulatory and customs alignment between the UK and the EU after Brexit, which offends Brexiteer notions of sovereignty, or a regulatory border between Northern Ireland and Great Britain, which offends unionist sympathies throughout the Conservative Party and, more importantly, in Northern Ireland. Nervous MPs in both groups were privately reassured that, once the United Kingdom had left the European Union, the government would unpick those problems: the Internal Market Bill is Boris Johnson’s way of keeping that promise.
But the price is tearing up the UK’s obligations under international law: a cost too great for many Conservative MPs to bear. Staunch Brexiteers such as Geoffrey Cox, the former attorney general, and Rehman Chishti have announced they cannot support the measure. So too has Sajid Javid, who backed Remain more out of loyalty to George Osborne than any particular commitment to the EU, and consistently advocated for a hard exit after June 2016. They are joined in the Lords by Norman Lamont, the man credited by many Leavers with reviving Brexitism as an intellectual force on the right, and two former Conservative leaders, Michael Howard and William Hague. It is far from certain that the Internal Market Bill’s law-breaking provisions, which have no mandate from the public, will survive the House of Lords intact.
Some of the cases against the Internal Market Bill are overwrought. Howard asked how the government could condemn China and Russia for conduct that “falls below internationally accepted standards” while defying international law. Dismantling the Withdrawal Agreement is foolish and dangerous, but it is hardly in the same category as the brutal repression of the Uighur people or the poisoning of opposition politicians. In any case, neither Xi Jinping nor Vladimir Putin looks to Boris Johnson for moral guidance.
The bigger question is what happens if the Scottish government opts to follow Britain’s lead in breaking the law in a “limited and specific way” (to use the phrase deployed by the Secretary of State for Northern Ireland Brandon Lewis) by holding an independence referendum without first seeking the approval of Downing Street.
One of the tactical insights of Dominic Cummings, the Prime Minister’s influential aide, is the belief that there is no sanction in politics for breaking an unwritten rule and in practice there are few sanctions for breaking written ones either. There is a political advantage to be had if you are willing to follow only the rules that come with hard punishments attached.
The problem is that Cummings lacks the strategic imagination to wonder about what will come after him. The underlying assumption beneath Downing Street’s actions is that the worst that will happen after the Johnson era is that Sajid Javid or Keir Starmer will take over. Both are strongly attached to the rule of law, so what Cummings and Johnson consider the old and ineffective way of governance would return. But there’s no guarantee that, in contrast to Cameron’s law-making approach, Johnson’s endless search for advantage won’t lead the way for a new age of law-breaking – and a more sinister politics entirely.
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