11th February 2021
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.
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