In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
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‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
This refers to this exercise in civil disobedience.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
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‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
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‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
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‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
— Robert Saunders (@redhistorian) September 5, 2019
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
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Bogdanor is a professor but that alas is no guarantee of anything – except perhaps prolixity. I’ve never found him particularly insightful . His recent comments comparing the EU commissioners to Adolph Hitler suggests that retirement is overdue
Yes, spot on. I found his pieces interesting maybe 20 years ago, since then he has veered further and further off the rails.
I would be very interested to read Vernon Bogdanor’s response to this interesting piece. What cannot be gainsaid is that the Conservatives won their thumping majority in 2019 on a manifesto commending the ‘oven ready’ deal and the Northern Ireland Protocol to the people. Tory candidates were required to consent to these agreements (and subsequently voted them into law, as they had undertaken to do).
Current efforts to delegitimise the Protocol as an ‘unequal treaty’ or ‘unconstitutional’ are surely wrong. It was Brexit itself that created the problem. The Protocol was the best solution that politicians (EU and UK) were able to devise once the backstop had been rejected.
The thumping majority was in respect of seats won not because they secured a significant majority of votes.
True but the whole point is that is how the democratic system works in the U.K.
If you want to change that in all circumstances that’s legitimate.
If you only want to remind us of that reality when your side lose you are just whinging.
That was obtuse, Dan – the point clearly being made is that the current debacle of a situation is not remotely reflective of what the electorate was promised, and that therefore it cannot be considered to have a popular mandate.
Oh – and:
Who are the “winners” here, exactly?
I read the piece, and, I’m afraid, I didn’t give it the insightful dissection you did.
I saw a supposedly eminent professor lay the intellectual groundwork for a return to significant Sectarian violence in Northern Ireland to pursue a political end.
Maybe he didn’t mean that, but in the context of the January 6th Insurrection in the US, plus the violent unrest seen recently, I’m not inclined to give him the benefit of the doubt.
The reference to the Kurds seems particularly blatant in that respect. Most people in the UK know very little about Kurdistan, other than that a proportion of the population has taken up arms to try to change their constitutional status with respect to Turkey. Obviously things are massively more complicated than that, but that is surely the image that Prof Bogdanor wanted to bring to his readers’ minds. In the absence of a clarification from him, it’s hard to see what else he could have meant.
The phrase “Queen’s Rebels” has an ugly history in Ulster Loyalism: it has historically been used to justify resistance to the law, on the basis that loyalty to the Crown trumps loyalty to a treasonous Parliament. The Belfast Telegraph, for example, quoted a warning in 1975 that
“The time might come when Ulstermen would have to become Queen’s rebels in order to remain citizens of any kind. Rebellion against Westminster could be mooted, but not against the monarch”.
Likewise, the idea that Ulster owes only a contractual obedience to law, dependent on proper “respect” for the Union at Westminster, has long been used to justify resistance. The same article placed special emphasis on
“the place of the monarchy in the scale of Protestant-Unionist values. From the Subscription Solemn League and Covenant in 1644 and before, the monarchy has had pride of place in that value system. Failure to understand such a mutually contractual concept of two-way allegiance has led many to make fundamental mistakes in assessing the nature of the ‘loyalist mentality'”. (Quotes from Belfast Telegraph, 6 September 1979).
Bogdanor doesn’t seem to have given even a second’s thought to how his views on needing the consent of the governed might apply to nationalist residents of Northern Ireland, for whom a united Ireland would be the natural arrangement and the union is the imposition. Nor does he seem to have considered how the conflicting desires of the two communities might be reconciled, and whether an agreement on a compromise, perhaps signed on a Good Friday a number of years ago, might be necessary if the people of NI are to avoid a return to the violence of the relatively recent past.
If Bogdanor believes Unionists are entitled to resort to civil disobedience, what acts does he believe Republicans are entitled to resort to? After all, it would seem strange to grant the right of civil disobedience to those who profess loyalty to the Queen (who herself has never endorsed such actions against her Parliament), while denying such a right to those who do not accept that they owe any loyalty to Her Majesty.
Can we just start by renouncing violence?
I read the article on Twitter, what a great resource it can be particularly when Telegraph articles are posted.
Like you, I wondered where the Kurds, Israelis and progressive theologians came into it, but let that pass. Perhaps he will answer that point.
Does the Professor discuss his thoughts with anyone?
If he writes an opinion piece on Northern Ireland can he consider more than one side?
Others have strived to resolve the situation. Arguably Ireland was well set for a bright future as art of a union of 28.
That was thrown away by a decision made by a government led by one of his ex students.
Where did he stand on the referendum? Was he for remaining? Is this a change of heart or is he doubling down? Perhaps he could enlighten us?
But all he seems to be able to do is add fuel to the fire.
A similarly illuminating quote from Bonar Law dates from 1912 and runs” I can imagine no length of resistance to which Ulster can go in which I should not be prepared to support them.” Will history repeat itself a hundred years later?
Professor Bogdanor is 78 in a couple of weeks and has not been a member of the teaching staff at Brasenose/Oxford for a good few years (he holds ’emeritus’, i.e. ’eminent-but-retired’ status). He was acting (College) Principal in 2002-3, the year he turned sixty, but I’m not sure exactly when he retired -possibly in 2009 or 2010, as many Profs of his generation had a retirement age set at 67.
Though Bogdanor has of course continued to research, and write, one might be tempted to think one sees an increased amount of inflexibility, and rather more of a shoot-from-the-hip / ‘choleric’ tendency in his views as he has moved through his 70s. Speaking from inside academia I might suggest that *too much* eminence is often rather an… over-rich diet, as the history of numerous Nobel Prize winners who have gone a bit funny in their later years shows. Anyway, one wonders if a younger Prof B would have felt quite the same need to pen contentious op-eds for the Telegraph. I can quite see why the Telegraph would want to get him to write something like this – I am just a bit surprised he accepted. But then, he seems to have a regular gig writing Telegraph columns these days. Again, a cynic might suggest that, once you are less of an academic and more of a media pontificator with a regular page to file, the tendency – or at least the temptation – to shoot-from-the-hip controversialism becomes a lot greater.
I have read this blog several times, but I’m still unclear what Prof Bogdanor is trying to say. Some clarification of terms may be useful.
The term “Queen’s Rebels” is the title of a book by DW Miller first published in the late 1970s, and updated in 2007. A theme is the seemingly contradictory pattern of “conditional loyalty” in the 20th century by the “Protestant” community.
Not all Protestants are unionists, some are nationalists. Loyalists are a working-class part of unionism, generally more extreme in their views than others. It may be relevant that working-class protestant boys have the lowest educational attainment of any group in NI; many leave school with minimal qualifications (or none).
Their “loyalism” is to their own group and to the rather nebulous entity of “the crown”.
The “Good Friday Agreement” is how this is described by those of a “nationalist” viewpoint; “unionists” refer to it as the “Belfast Agreement”. The GFA/BA was also tellingly described by Seamus Mallon of the SDLP as “Sunningdale for slow learners”.
In the legal judgement, there is a note about one of the Appellants, Mr Habib. As an MEP he voted for the Withdrawal Agreement and thus the NI Protocol, yet he was asking for this to be declared illegal. That, in a nutshell, demonstrates the confusion in so much of unionism’s thinking.
In discussing the Enlightenment principle of the consent of the governed, Bogdanor, somewhat surprisingly, cites “the Israelis” alongside the Unionists and the Kurds, as if what is at issue in this case are the rights of a group of people rather than a state subject to international law. This underpins the view in his article (https://en.idi.org.il/articles/3229) dismissing criticism of Israel as anti-Semitism, while failing to mention its continuing breaches of international law as set out in e.g. UN 2334.
A three-part article on the history of loyalist violence in NI that is well worth reading:
https://sluggerotoole.com/2021/06/30/but-violence-worked-for-the-other-side-loyalisms-dangerous-and-dishonest-myth-part-1/
https://sluggerotoole.com/2021/07/01/but-violence-worked-for-the-other-side-loyalisms-dangerous-and-dishonest-myth-part-2/
https://sluggerotoole.com/2021/07/02/but-violence-worked-for-the-other-side-loyalisms-dangerous-and-dishonest-myth-part-3/
Ireland is being threatened, again, by Frost and others in code that does not take much deciphering. Fortunately, Ireland has friends in the EU and the US, and of course, many in the UK too.
Thanks for posting. Very eloquently put, something Frost and his friends haven’t mastered.
There is widespread practice of treating the support given to Ulster Unionists in 1914 as incompatible with adherence to the rule of law.
The fact that the leader of the Ulster Unionists was Carson, a prominent QC, and his lieutenant was F E Smith, another prominent QC and later Lord Chancellor, might give rise to some questioning of this.
Both Carson and F E Smith (and in this they had widespread support within the Conservative and Unionist Party in Westminster) held that the constitution was in suspension following the passage of the Parliament Act of 1911. Their argument was that (1) the Preface to the Act contained a commitment to a fuller reform (2) until the Lords was fully reformed, Parliament was not properly constituted and should not alter the structure of the United Kingdom. The idea that parliament had to be properly constituted was an important factor in the Restoration Settlement following the Interregnum and could have been a significant issue had Elizabeth I been succeeded by a catholic prince. It was an issue raised by the Commons during the Merciless Parliament of 1388.
The make up of the House Commons gave some weight to this argument. The Asquith government was a minority government after 1910, sustained by Labour and Irish Nationalist MPs. In 1911, the Conservative and Unionist party (which for the first quarter of the twentieth century often called itself the Unionist Party – it was only after 1925 that “Conservative” was most often used alone) became the largest party in the Commons.
The led to a situation in mid 1914 in which a Home Rule Bill which was not one that Asquith and his cabinet wanted was about to become an Act. By that stage, Asquith had realised that Ulster (or at least the six counties) had to be excluded from the territory to be run from Dublin. However he was trapped by his lack of a Commons majority and the quirk that the Parliament Act only removed the Lords’ veto over a Bill which was identical to that which hade first been agreed by the Commons but rejected by the Lords – and the first version of the Bill in 1912 had not excluded the six counties. in mid 1914, attempts were made to find a solution but they failed because that which was acceptable to the Lords was unacceptable to the Irish Nationalists and long before Nixon they had grasped the point that if you have a man by the balls, heart and mind soon follow.
In the summer of 1914, party which was genuinely unionist (look at Liverpool, for instance) and which was the largest party in the Commons did have some grounds for arguing that the proposed Home Rule Act should not be regarded as a valid law of the United Kingdom. Certainly both Carson and F.E. Smith said that this was the case. We may today say that they were wrong but that does not mean that they did not genuinely believe in the position they argued.
“There is widespread practice of treating the support given to Ulster Unionists in 1914 as incompatible with adherence to the rule of law.”
And if this is the best defence for those involved, this widespread practice is also the correct view.
I think you are probably right – my point is that it might not have appeared so to participants at the time.
As I understand it, after the partition of Ireland, the UK government saw the result as a reasonably successful resolution of the problem, so was tempted towards partition in other colonial situations. And we can see the long term results in places such as Palestine and India.
To say that state power’s legitimacy rests in the last resort on the consent of those being governed by it is a philosophical argument that doesn’t take us very far “operationally”.
How can one effectively determine what the “governed” actually want and don’t want when all the mechanisms we’ve got for measuring public consent are so inadequate?
Are you going to believe what the opinion polls say, even though their results change over short periods of time and don’t always agree with each other)? Are the results of general elections and referenda any more valid?
Then there’s “acted out” protest and disobedience to normally accepted authority … I tend to believe there are “consent lessons” to be learnt in some jury decisions (eg the refusal of the jury to give a “guilty” verdict against activists even though they’d been instructed by the judge that the activists had no defence in law against the charges). However, these “lessons” need to be repeated consistently before the state can reasonably judge there’s been a change in what the public want the state to do. How many times does the state have to be told to do things differently before it’s “authorised” by the public to do so? And which groups should the state take its instructions from? The jury, for example, reached one decision about the activists; those inconvenienced by what the activists did might well take the contrary view.
I wonder if Emeritus Professor Bogdanor would apply the same reasoning and analysis to Scotland, and the possibility of extra-‘constitutional’ action there?
Presumably Professor Bogdanor (from the examples he gives) is arguing that the enlightenment principle of “the consent of the governed” either implies or has developed into the right of a “people” to national self-determination as per the United Nations Charter (Article 1). So he would have been free to refer to that Charter to support the Unionist community’s right to be governed as they see fit. Would that have sufficed to bring him within the rule of law?
In my view, as Karl Popper argued in “Conjectures and Refutations”, National Self-Determination is an “utter absurdity” and the characterisation of Unionist Northern Irish as a “people” separate from other Irish, merely emphasises that absurdity.
The Ulster Workers’ Strike, in protest against the Sunningdale Agreement, was a very nasty episode. The Agreement, however, was the start of a series of improvements in relations and understandings between the ROI and the UK, as mutual members of the EEC, that eventually led to the Belfast Agreement and some years of relative quiet. Our problem now is that the UK government,
outside the EU, appears not to understand nor to give any priority to the political sensitivities of the North of Ireland. These times are different, of course, to those of the 1970s, when Republicans had no political standing, whereas now Sinn Fein is influential both sides of the border and need mostly strategic patience.
Re: Queen’s Rebels.
I’ve been trying to get my head around this since your mention above. In recent usage, the phrase was made popular by Rev Robert Bradford in 1975 when he was an MP. He said, “The time might come when Ulstermen would have to become Queen’s rebels in order to remain citizens of any kind”. Bradford was a Vanguard Unionist MP, and was assassinated in 1981.
The original concept is from the 17th century with the plantation of Ulster; many of these people were Scots Presbyterians who naturally brought their covenanting ideas etc with them.
Their idea of Loyalism is still prevalent; it’s being loyal to your own group or “nation”. It includes loyalty to the crown, the monarchy which is considered to be there by jure divino. Today, the power of the prince is represented by the idea of “the Crown in Parliament” rather than in the personage of the “office holder”.
It’s the conflict between the crown and the personage which seems to form the basis of a Queen’s rebel. You are loyal to the crown, but view the prince (the Crown in Parliament) as untrustworthy, someone who won’t do what you consider to be right. That is, you accept his divine right to be the monarch, but you expect him to bend to your will. This might seem an odd notion today, but was apparently quite normal 400 years ago.
So, Queen’s rebels are very loyal to the monarch, but see the government, whose power and authority flows from her, as devious and untrustworthy. Therefore, by rebelling against the government they are fighting what they see as unjust interference and action by the government while still remaining loyal to the Crown.
Are you sure about the loyalty to a divine-right crown?
My – limited – understanding of the Scots Covenanters was that they opposed the overweening behaviour of the governments of the Stuarts. – In favour of Kings perhaps, but only if they were covenanted Kings; and prepared to forfeit Kings who were found wanting.
– This might have mutated over the centuries in the specific conditions and demographics in Ireland, of course.
Part of the present Queen’s Coronation was screened off from view. This was when she was anointed with chrism or holy oil by the Archbishop; this is the most sacred part of the ceremony, and as I understand it, is the moment when the Monarch’s “contract” with the Almighty is established.
This does seem to be the concept that Loyalists are loyal to; an anointed Monarch. It’s the behaviour of the Monarch, whether they can be trusted — similar to the covenanted Kings you mention — which gives rise to the possibility that Loyalists, to confirm their loyalty, might rebel.
This is the best explanation I can find so far of this apparent paradox; Loyalism is so bound up with history, religion, the Orange Order and more that being certain of things is very difficult.
I have asked Loyalists to explain what they are loyal to. Part of the answer is usually “themselves”, and this refers back to “bands” in the 17th century, when local protestants had to band together for their own safety against the (perceived) attentions of the enemy — Catholics.
Is it merely coincidence that Bogdanor’s piece came out on the 4th of July? As I understand it, the American Revolution was widely understood at the time to be driven by the Scotch-Irish: “Cousin America has run off with a presbyterian parson” was supposedly Horace Walpole’s comment in the House of Commons.
However, perhaps the Telegraph piece is informed by Bogdanor holding a “territorial integrity of the state” position, but having his “what the queen in parliament enacts is law” tag flung at him? That wouldn’t be novel: Arch-opponent of Home Rule Dicey had his book cited by Gladstone when moving the Motion for Leave to bring in the first Home Rule Bill [8/4/1886]:
The Union texts state in absolute terms for equality of trade regulation. Why – because the 1800 legislation echoed the 1707 legislation, and the Scots had demanded certain “anti-fraud on the minority” provisions for equal treatment baked-in to the deal with their larger, more populous neighbour, which just happened to have a few overseas colonies: “This was one of the principal objects of the Union” (Lord Keith in Gibson v Lord Advocate).
The operative text – in the Scots Act since the English Act was essentially a ratifying Act – is very clear.[Curiously, the text now showing on the Legislation site has had the punctuation excised, which obfuscates things a bit. The rps.ac.uk site has the punctuated text].
The judgment by Colton J:
A. asserts at para 75: “That the doctrine of Parliamentary sovereignty is a fundamental aspect of constitutional law in the United Kingdom is beyond dispute”
B. Places considerable stress on the fact that primary legislation was passed by the Westminster Parliament [paras 71, 297 and several other references]
However, LP Cooper in MacCormick stated both
– that the theory is distinctively English and not part of the law of Scotland, and
– that whether primary legislation of the union parliament was involved was neither here nor there.
So whether you agree with Cooper or not, can it really be correct that the position is “beyond dispute” in relation to the UK (rather than eg England)?
– Isn’t the real question: if the union parliament has power to amend the the terms on which the state was formed, where is that power given to it, and by whom?- it’s this which appears to be what everyone is dancing round.
Bonar Law seems to be a bad press nowaday. But he was born into a Free Church manse 16 years after Act XIX passed. He may well have believed that those things secured by “antecedent stipulation” can, in extremis, be publicly acknowledged as having been placed beyond the power of any entity (such as the union parliament) created pursuant to such stipulations.
https://www.british-history.ac.uk/church-scotland-records/acts/1638-1842/pp1112-1149#h3-0020