11th February 2021
Over at Prospect magazine yesterday I set out a brief response to a piece by Vernon Bogdanor on Brexit and the constitution.
The first version of my Prospect post was a sentence-by-sentence ‘fisking’ of the Telegraph article – until I realised that such an approach gave equal space and prominence to each error and unsubstantiated assertion.
Such an approach would be a problem in this instance because there was one flaw so fundamental that it warranted addressing in and by itself.
The fundamental mistake was a refusal to accept that the Good Friday Agreement transformed the constitutional arrangements of the United Kingdom.
Indeed, as I set out in that piece and have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.
It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.
Even before Brexit, the Good Friday Agreement’s express requirement that the European Convention on Human Rights must be capable of being directly enforceable in the courts of Northern Ireland severely limited the attempts of Tory politicians to repeal the Human Rights Act 1998.
And with Brexit, the Good Friday Agreement limited what forms of Brexit were available to the United Kingdom and the European Union.
Other than a ‘hard border’ requiring impediments on trade and commerce between the north and the south on the island of Ireland, there were only two possibilities.
One was that the whole of the United Kingdom remained (excuse the pun) within the European Union single market and customs union to the extent it affected any Northern Irish matter – and this was the approach favoured by former prime minister Theresa May.
Or the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland – and this was the approach favoured by prime minster Boris Johnson and for which he won a general election mandate.
There was no other way the problem could have been addressed.
*
But stepping back from this problem and its practical solution, it is difficult to think of any other single legal instrument that has shaped public policy in such an emphatic way.
And this is rare in the politics of the United Kingdom.
This is because the doctrine of parliamentary supremacy means that usually a government in Westminster with an overall majority will get its way.
The notion is odd that anyone can point to a legal document and say ‘no, Westminster government, you cannot just do as you wish because of this legal instrument’.
But this is what has happened.
Faced with this unusual constitutional phenomenon, there are two approaches.
*
The first approach, adopted by Bogdanor in the Telegraph article is to try to force the constitution into the box it was in before the Good Friday Agreement.
That is to take the pre-1999 constitutional arrangements of the United Kingdom as the standard from which things have since deviated, and to cure such deviations by reasserting a classic model.
Here the very final sentence of the Telegraph piece is the tell: “Today’s argument is about the cohesion of the kingdom”.
*
The second approach is to try to see how the constitution has changed without prioritising one moment of the constitution’s development over the other.
The Good Friday Agreement is not about ‘the cohesion of the kingdom’.
The Good Friday Agreement is the recognition that in respect of Northern Ireland there is a contested polity.
The agreement then regulates that contested polity by positing the absolute standard of consent.
The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.
The agreement provides that any political question in respect of the position of Northern Ireland has to be approached not only from the perspective of the United Kingdom but also of Ireland.
The agreement also provides for an all-island and cross-border approach where possible, the granting of citizenship rights, and for the removal of visible infrastructure on the border.
To demand that the United Kingdom to again be ‘cohesive’ is to miss the point of the Good Friday Agreement.
The Good Friday Agreement is the (realistic and mature) recognition that in respect of Northern Ireland the ‘kingdom’ is no longer ‘cohesive’ but is contested.
*
The twin perils of constitutionalism are fogeyism and utopianism.
Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.
Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!
(I have written on this later approach here.)
Perhaps it is because we do not have a codified constitution that constitutional discourse in the United Kingdom – or in England, to be more exact – is so impoverished.
Both the fogeys and the utopians prioritise a normative approach to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.
What both miss is a positive approach – for, in descriptive terms, all a constitution is is the answer to the question: how is this polity constituted?
And the descriptive answer to that question will change from time to time, sometimes in accordance with your values and sometimes in breach of them.
The constitution of the United Kingdom – that is, the descriptive answer to the question of how the United Kingdom is currently constituted – is just there, and it will always be there is some form as long as the United Kingdom exists.
And the constitution does not care for your nostalgia – or your utopianism.
*
POSTSCRIPT – 4pm same day
Bogdanor has now responded to my response here – nothing in each changes anything, and I stand by my position that his Telegraph article fundamentally misuunderstands the constitutional significance of the Good Friiday Agreement.
*****
If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-m, for oderated.
Comments will not be published if irksome.
“(I have written on this later approach here.)”
Please could you add the link? It is not working on your blog.
Done
Having had a while to think about the extraordinary risks with the UK that the NI protocol took I cannot see how the architects of it did not privately believe they were making decisions that meant that a United Ireland was inevitable and that they were merely accelerating an inevitable process. I cannot see any other reasoning. UK politicians had grown weary of discussions on the backstop. The previous Prime Minister had said no (Unionist) Prime Minister could agree to an internal border. They knew what would happen.
I think your observation that the architects of the GF agreement were taking a huge risk has ignored the fact that they were working within the context of both the UK and Irish Republic being part of the EU, working to ever closer union, in which not only borders became less important, but decisions increasingly were taken either locally or at a union of nations level. As an example, nobody thought it odd that the main provider of healthcare to the people of eastern Donegal should be the UK NHS.
There was no risk at all to pursuing the GF agreement to the UK. Unless something bizarre happened, like the UK deciding to leave the EU.
As the UK government was in the hands of Tony Blair’s Labour at the time, thoughts of exiting the EU could not have been further from anyone’s mind. However, the Conservatives at the time were obsessed with it. But they were so diminished that no-one took any notice
Philip wasn’t saying that signing the Good Friday Agreement was a risk. He points out that signing the NI Protocol, to try and get around the blockage that the GFA presented to the Brexiters’ ambition, was risky. As events are proving to be the case.
He’s talking about the NI Protocol, rather than the GFA. You’re right that there was little risk for the UK government with respect to the GF Agreement – the risk there was for the parties in NI, as it wasn’t entirely clear that their supporters wouldn’t see the compromise as a sell-out.
The NI protocol is different though. It does put up barriers between NI and the rest of the UK (no longer as “British as Finchley”) while Brexit puts up different barriers between NI and Ireland. (Matthew O’Toole of the SDLP had a twitter thread a few days ago about the effect on the all-Ireland economy, for example.)
I don’t know whether I’d go as far as agreeing that the UK government think that a United Ireland is inevitable, more that they thought that they could water down the NI Protocol after the fact, and blame the intransigent EU, if that didn’t work. But I do agree that they are willing to accept the risk of “losing” NI as the price for Brexit.
I have to agree; perhaps the question should be whether or not Irish unification would be a bad thing. It feels like a natural and sensible solution to a century old anomaly from this side of the water. However, as DAG would say,
But.
Would it re-ignite the troubles in a mirrored form to before? Would we have a “loyalist” terror campaign to re-assert the former status quo in the same terms as the republican grievances played out?
As DAG says, the area is contested; resolving that contest for one side only could be a dangerous, festering wound.
To be clear, I’m an English Londoner and am a great believer in the statement (I forget who said it) that anyone who understands the situation in Northern Ireland isn’t in full possession of the facts.
Feel free to shoot me down in flames ;-)
A normal sane and informed individual would concut with your reasoning. However, do not forget we had a Minister for NI who was unaware that Protestants tended to vote Unionists and Roman Catholics not. The knowledge of politicians of our own history is woeful. Just recently Priti Patel floated the idea of starving the Irish into submission by with-holding food exports. Such ignorance is unforgiveable amongst our representatives
Somehow I’d missed seeing starve-the-Micks at the time (it can be awkward to sip from the firehose of idiocy that this Govt wields) so that was educational backfill, and seems of a piece with the linked commentary from Matthew O’Toole:
“(By the way even the DUP economy minister admits that the new UK immigration rules are shocking for the NI economy but keeps writing letters to Priti Patel to no avail)….”
It’s hard to find sympathy for the DUP throughout this: they so smugly lay down with the dogs, now their compatriots all suffer from Johnson-administration fleas.
I would be interested to read your application of this argument to Scotland. The combination of devolution and, in particular, the 2014 referendum have created a similar situation in Scotland. The principle that the electors of Scotland can decide for themselves their status within the UK and can also decide whether to be a part of it is now established. The fact that London wants to respond by reversing part of devolution without Scottish consent is making the situation worse from their point of view because they do not recognise this.
This point is valid whether one believes in independence or in the current level of devolution or in greater devolution.
It is more than an established principle. In addition to the political realities you mention, it is also there in law. Section 63A Scotland Act requires a referendum before altering the status of the Scots parliament.
Much current Tory commentary in favour of rolling back devolution to Scotland, is pure “fogeydom” – or, possibly, made in pure ignorance of this recognition of power to the people of Scotland.
It is a massive constitutional change away from the electoral dictatorship at Westminster
Great piece, DAG! Thank you and please keep them coming. Best wishes, Michael
Is another way of putting it that the GFA is effectively part of the British constitution? An unmovable part, unless there is consent from the Northern Irish people to change it?
As DAG says above: “Indeed, as I […] have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.
It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.”
Surely, the changing the GFA requires more than just the consent of Northern Irish people. I would have thought the Republic of Ireland has just as much of a stake in GFA as anyone.
Correct
Bognador discounts avoiding a soft border but says : “What the Agreement does require is equality of respect for both communities. I leave your readers to decide whether the Northern Ireland Protocol has achieved that, when it has been consented to by the nationalist community while the unionist community has refused its consent.”
Does he think both sides would accept a hard land border?
The following Twitter thread undermines the DUP’s argument that putting a regulatory and customs border down the Irish Sea threatens the integrity of the United Kingdom. For nobody would seriously contend that the United States of America isn’t a ‘proper country’:
https://twitter.com/castlvillageman/status/1358077126826741762
Brexiters in particular and Tories in general never grasped that NI was the Achilles’ heel of Brexit. The DUP and arch Brexiters such as Gove voted against and wrote vehemently opposing the GFA. The GFA is another of those instances where Westminster ceded “sovereignty” (to Ireland, to USA and to the EU) in order to maintain peace in UK. It was hard fought for and started with Westminster talking to the “terrorists” IRA albeit clandestinely. In the end governments always have to talk to the terrorists if there is to be a political solution. NI remains in the UK for as long as its inhabitants wish it to. They have the self-determination whether they remain or wish to rejoin Ireland. Likewise, the people of Scotland have the right of self-determination whether they wish to remain in the Union or not. Scotland is a nation and so must also possess sovereignty. Brexiters seem to conceive that “sovereignty” is a one way street for the benefit of England. It is not.
I agree with the points around NI, but I would be careful about the point that self determination must lead to sovereignty. There are many times more nations in the world than there are sovereign states (Ernest Gellner made that point beautifully).
Self-determination of nations was/is a historically situated concept promoted by President Wilson and others around the end of the First World War. In extreme cases over the next 30 years from then it led to some terrible things from ethnic cleansing (Ukraine / Poland) to mass deportations (Czechoslovakia, Poland to Germany) not to mention Sudetenland etc. NI is different not necessarily because it is contested (which it is) but because GFA now exists and is part of the UK constitution. Scotland is not in the same legal position.
Possibly we have arrived in the situation we are now in because extremely few people, in politics or the media, took our constitution seriously.
Allowing parliament to muck about with it at will has diminished it. Whether it is codified or not, it does need to be treated with extreme care. We only need to look at the USA in recent months to see that inherent respect for the constitution there has prevented a disaster.
I have thought that one fundamental advantage of EU membership was that every member state’s leaders were exposed to the combined common sense of other politicians. Politicians whose only loyalties and obkigations to each other are as fellow EU members.
The GFA was crafted in a similar fashion. It wasn’t the unrestrained invention of one UK minister. It had to persuade many others who had a stake in peace in Ireland.
Its strength derives from how it was created. There really is nothing to suggest that further changes to our constitution will be so well crafted.
A very informative piece. Not being a lawyer and being a Brit living (for many years) in the EU, I was not fully aware of just how inextricably the Good Friday Agreement was woven into our constitutional arrangements. It was clear during “the Brexit years” that it was a circle that could not be squared, but I’d never seen such a cogent (and succinct) explanation as to why this was so. It would seem that I am not alone. How could the DUP be supporters of Brexit (and Unionism) when the fact of it would necessarily distance NI from the mainland (economically and politically)? Equally, Johnson’s promise never to allow a border down the Irish Sea was always going to be at odds with the demands of the agreement (outside the May solution). Can he seriously now be hoping to void the agreement by the back door, by forcing customs checks between the north and south on the back of “frictionless” internal UK trade? Could the Charlatan of 10 Downing St really be so cavalier with peace in Northern Ireland or is he really that clueless about this constitutional arrangement (despite the best efforts of his legal advisors)?
Only addressing the DUP part; I think they were hopeful that it would not distance NI from the mainland, instead causing us to put a border between NI and Ireland again to keep NI as close to the mainland as possible.
In other words, they saw Brexit as a chance to undo the bits of the GFA that they disliked, whatever the price, and they are now discovering that Brexit is going to instead involve maintaining the GFA, and damaging mainland NI links in order to do so.
The GFA did not come out of nowhere. It developed from a series of constitutional fudges going back to partition, the Free State, and before.
How clear and concise you are …
Yes, the Good Friday Agreement is now of fundamental importance to the manner in which the United Kingdom of Great Britain and Northern Ireland is currently constituted, rather than how it was in the past or we might like it to become. It is one of the few legal instruments that sets matters out in black and white, unlike much of the British constitution (and indeed the common law) which is a blancmange of convention and and precedent and procedure. That formlessness gives it flexibility, but also makes it difficult to pin down with much precision.
Legal and constitutional mechanisms to reunite Ireland existed there well before 1998. The history of Ireland and its relationships with the UK are convoluted enough, but just to pick on two elements.
The Government of Ireland Act 1920 created a separate Northern Ireland (in parallel to Southern Ireland, which turned quickly into the Free State through the 1921 Anglo-Irish Treaty). It also set out a mechanism for creating a united parliament for the whole of Ireland, as the Government of Ireland Act 1914 had envisioned but never achieved. https://www.legislation.gov.uk/ukpga/Geo5/10-11/67/contents/enacted
And there was an express mention of a border poll in section 1 of the Northern Ireland Constitution Act 1973, and an unsatisfactory referendum was actually held in 1973 although boycotted by the nationalist parties. https://www.legislation.gov.uk/ukpga/1973/36/section/1/enacted
A couple of relevant links:
* https://sluggerotoole.com/2017/02/26/a-border-poll-can-be-held-at-any-time/
* https://constitution-unit.com/2020/12/22/a-hundred-years-of-the-government-of-ireland-act-how-it-provided-a-model-for-westminster-edinburgh-relations/
Brendan Heading has recently posted a further article on Slugger about the Border Poll with more up-to-date information:
https://sluggerotoole.com/2021/01/24/a-border-poll-can-be-held-at-any-time-redux/
The parties that negotiated and signed the Good Friday Agreement deserved better than to be dismissed by a referendum that so clearly highlighted the importance of the relationship that the UK had developed within the EU to resolve the most intractable issue on these islands. When Major and Blair spoke out during the campaign in favour of remaining it should have dominated the news. It was barely mentioned. We now have to suffer the consequences. The role of the USA in any future negotiations may again be of great significance.
I can see the role of the USA in future negotiations being challenging in the near term. Joe Biden is clear that he considers himself Irish-American, and that he takes the USA’s role as guarantor under the GFA extremely seriously.
This implies that, for the UK to remain on good terms with the USA over Biden’s term of office, we’re going to have to work hard on complying with the NI Protocol; else, Biden will just make that a stumbling block.
On the EU border issue, it is as plain as a pikestaff that, if there is to be a border between Kent and the Pas de Calais, then there needs to be one or more borders with equivalent effect somewhere between Great Britain and Northern Ireland (that is, in the Irish Sea), or between Northern Ireland and the Republic of Ireland* (that is, a land border), or between the Republic of Ireland and France.
* I know, it is just formally just “Ireland”.
If you can’t have a border between the Republic of Ireland and the rest of the EU, or between Northern Ireland and the south of the island, that leaves either two options: a border in the Irish Sea (like there is between Great Britain and both France and the Republic of Ireland), or no border.
I have long thought that the only long-term solution is the north of the island of Ireland reuniting with the south. That is a matter for democratic consent, of course, and both north and south will need to vote for it, but demographics and now economics are leaning that way in the north, and despite the problems involved (and it should not be taken for granted) I would not expect the south to vote against. And the very best of luck to them.
You are right to mention the demographic changes in NI in this context. My parents are now in their late ‘80s – if I live as long as they do I fully expect to see a united Ireland.
I remember hearing reports that Cameron and Osborne made a decision not to raise the Irish issue during the Brexit campaign because they didn’t think they had sufficient time to properly explain the complexities to a population largely ignorant of the history and politics.
It seems to me that Bogdanor could have avoided the mistake of missing the change to the UK’s constitution resulting from the GFA if he had reflected on what it meant for the Irish constitution. They literally deleted their territorial claim to NI from their constitution and had to hold a referendum to endorse that. Given that they didn’t complain about that, a curious mind would perhaps enquire what the Irish government felt the UK was changing about its own constitution, which meant that the overall treaty wasn’t unbalanced.
Prof Bogdanor’s specialist area is not international law. But much of what he writes about Ireland seems to struggle to grasp that UK-Ireland relations are nowadays a matter of international law, not simply the law of the UK as it stood in 1920.
I doubt that the Irish would have amended their constitution to delete those articles, had the context at the time (i.e. UK and Ireland both in the EU Single Market & Customs Union) not rendered the land border largely irrelevant.
Sluggerotoole.com is the leading political blog in N Ireland. There was a piece about Prof Bogdanor the other day when he was backing the DUP’s objections to the protocol. This didn’t go down well with commentators:
https://sluggerotoole.com/2021/02/06/leading-constitutional-expert-backs-dup-objections-to-the-protocol/
(Disclaimer; I am a moderator on Slugger O’Toole)
Bogdanor has now responded and I have added a postscript with a link.
Bogdanor’s response to you implies that the arrangements for Northern Ireland should have had the consent of both communities.
In the GFA, the Governments “recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose”. They also affirm that “the power of the sovereign government with jurisdiction [in Northern Ireland] shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities”.
Bogdanor is arguing that the duty of rigorous impartiality rules out making a choice between a hard border on the island of Ireland and a hard border in the Irish sea.
Maybe he’s right in this. But the implication is that he accepts that the GFA is a constitutional document that constrains the freedom of action of the UK state – and that the only Brexit compatible with it was the Theresa May deal.
I can’t help wondering when Prof Bogdanor will notice what’s happening in Gibraltar.
“… there were only two possibilities. One was that the whole of the United Kingdom remained … within the European Union single market and customs union … [o]r the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland … “
There was a third option: a border in the English Channel. Varadkar had, at one time, been privately briefing about border checks on the continent, e.g. in Calais and Rotterdam, in the event of a no deal.
https://www.irishexaminer.com/news/arid-30899440.html
“The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.”
This is a important understanding that we mainland British should be very careful to observe. To fail to do so is to take sides in the “contested situation” in NI. For a long time it seemed that this was well understood in Westminster. But recently it has shocked me that the Prime Minister and other prominent members of his party have failed to observe it.
Excellent article. I see Bogdanor is at it again in today’s Telegraph. Seemingly confusing Ireland with the EU. How do these nakedly partisan types get to be eminent historians beats me. Propagandists is what they are.