David Allen Green

Why a production company was not allowed to pre-record and broadcast the coronavirus procurement case – a guided tour of the court’s reasoning

20th February 2021

Physician, heal thyself – proverb.

Yesterday the high court handed down its decision in the challenge to the government’s lack of transparency in respect of coronavirus-related procurement.

The court held that the government should have been more transparent.

This blog will examine that judgment once it can be properly digested – but in the meantime, there are some paragraphs of the judgment are interesting in and of themselves.

These paragraphs set out why the court – in a case about transparency and the public interest during the pandemic – refused an application for a production company to pre-record the hearing for broadcast under the very legislation that allows the courts to be more transparent during the pandemic.

Which is a little bit ironic.

Don’t you think?

The court’s reasoning on why the hearing could not be pre-recorded for broadcast is set out at the end of the judgment in a section with the title “Postscript: recording and broadcasting”.

The reasoning is worth going through step-by-step so one can understand the limits of public transparency of the courts when dealing with cases about the public transparency of the government.

(Please note that some of the mild teasing of the court below should not be taken too earnestly.)

We start at paragraph 161 of the judgment:

‘161. Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application, indicating that I would give my reasons in writing at the same time as the judgment, unless the application was renewed orally at the hearing. The application was not renewed orally. These are my reasons for refusing it on paper.’

This is a useful reminder that judicial reasoning does not exist in a vacuum: judicial reasoning is about whether a court should do or not do a particular thing – usually whether to make an order.

Here, the reasoning is set out not because Mr Justice Chamberlain is going on some frolic of his own, volunteering his opinions on behalf of the judiciary of England and Wales on whether high court proceedings ought to be recorded and broadcast, but in response to a particular application by the claimants.

The government resisted that application – but not on its merits (though no doubt the government would not relish such proceedings being freely available).

The application was instead resisted on ‘jurisdictional grounds’ – that is that such an order would not be open to any high court judge regardless of the merits.

You will also note that the judge mentions the application was ‘in the interests of open justice’ – and you will see that in nothing that follows does the judge deny that proposition.

The judge refused the application, and so what follows in this post tells why the judge made that decision – and why he did not (or could not) make any other decision on that application.

And the post ends by averring that this was an opportunity missed by the high court and such an application could have been granted on terms.

Next is paragraph 162:

‘Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on the taking of photographs in court and on the publication of such photographs. This prohibition extends to video recordings: R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App R 29. Exceptions have been provided by and under statute. None applies to proceedings in the Administrative Court. Section 41 therefore constrains the inherent jurisdiction of the court: R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), [2019] EMLR 16.’

The judge starts at, well, the starting point.

Taking photographs in court and publishing the photographs is generally prohibited – which means it is generally a criminal offence to breach the prohibition.

The prohibition is set out in a statute that is nearly one hundred years old, the Criminal Justice Act 1925, section 41(1) of which provides:

‘No person shall—

‘(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

‘(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof [… ]’

But wait: the proposal is not to photograph inside the court – indeed the hearing is not even taking place inside a physical court room – so how is this prohibition relevant?

The judge explains that section 41(1) has been extended to also mean video recordings, even though such things did not exist as such in 1925 and the section does not expressly mention video recordings.

Unfortunately, the 2001 decision which the judge cites as being authority for section 41(1) extending to video recording – and thereby extending the scope of a criminal offence – is not itself easily found in the public domain.

The nearest one will find in a reasonable internet search is this brief case note – which tells us, unrevealingly, that the court of appeal decided an ‘appellant’s convictions were safe despite the police having unlawfully videotaped them at court and adduced the evidence of a facial mapping expert to compare that video with CCTV footage’.

How a member of the public could join that dot to what the court here is saying about section 41(1) applying to video recording is not plain – and so we have to take the judge’s word for section 41(1) prohibiting video broadcasts and recordings even though section 41(1) does not explicitly say so.

(Yes, I know one can access the 2001 judgment through subscription services – but this blog and and what it describes is an exercise in the public understanding of law using public domain materials.)

The judge then notes there are general exceptions to this general prohibition – see here – but tells us none of those exceptions apply.

As such he concludes section 41(1) binds the court’s ‘inherent jurisdiction’ – that regardless that the power of the high court is very mighty indeed, statute is even mightier.

And of course, the judgment he cites for this very important principle is also not (easily) found in the public domain either.

So again we have to take the judge’s word for it.

Welcome to open justice.

We now come to paragraph 163, which deals with how the courts have been specially allowed to conduct video proceedings during the current pandemic:

163. The Coronavirus Act 2020 inserted provisions into the Courts Act 2003 about “proceedings conducted wholly as video proceedings”. The first provision inserted was s. 85A(1), headed “Enabling the public to see and hear proceedings”. It empowers the court to direct that such proceedings may be broadcast (i.e. live-streamed). It also empowers the court to direct that the proceedings be recorded, but only “for the purpose of enabling the court to keep an audio-visual record of the proceedings”. Parliament could have authorised recording for broadcast, but did not.

Here the judge is describing what the law says – but also, by implication, what the law is not saying.

The law is set out in a section inserted into the 2003 Act by coronavirus legislation, which provides:

‘Section 85

‘If the court directs that proceedings are to be conducted wholly as video proceedings, the court—

‘(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;

”(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings […]’

Section 85 looks promising for the applicants – and the exception under sub-section (a) looks as if it could cover the envisaged broadcast.

On the face of it sub-section 85(a) could be read so to permit the pre-recording and broadcast as envisaged in the application – subject to any specifications of the court

(In my view, had parliament intended that such broadcasts could only ever be done simultaneously with the hearing then parliament would have said so, but it did not.)

But the judge dismisses this possible reading with a deft gloss in parentheses that the broadcast exception only means ‘live-streaming’ – but note, the relevant law does not explicitly mention live-streaming – just broadcasting.

And, of course, many things that are broadcast go through a pre-recorded stage.

There is not a rigid broadcast/record distinction in media production.

The judge decides the envisaged project would fall instead within sub-section 85(b), and he avers that any such recording can only be for the purpose of judicial record keeping.

(It would seem to me to be at least arguable that a direction would have been possible under sub-section 85(a) containing specifications as to the manner of how the proceedings should be broadcast – otherwise, it would ignore the fact that most broadcasts necessarily go through a pre-recording stage.)

As the court decides neither of the coronavirus-related exceptions apply under section 85, then the general prohibition stands.

The judge then, in paragraph 164, sets out the criminal offence that parliament created in the coronavirus legislation in respect of certain unauthorised broadcasts and recordings:

‘164. The second provision inserted was s. 85B, headed “Offences of recording or transmission in relation to broadcasting”. This makes it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a recording or transmission is “unauthorised” unless it is (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”

This means that if a hearing is live-streamed in accordance with an order, it will be an offence for anyone to record and re-broadcast such footage.

The judge then deals with what appears to be an ingenious attempt by the Claimants to get around the statutory regime using the wording of the criminal offence:

‘165. The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under s. 85A. This is topsy turvy statutory construction. Both the heading and operative language of s. 86B make plain that it is concerned with the creation of an offence and with the delineation of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be committed by a person who records or transmits footage pursuant to an authorisation by the court. That is not surprising. One would not expect something authorised by a court to give rise to criminal liability.’

Topsy turvy.

Of course, the language of ‘make plain’ and ‘made clear’ in law (as in politics) usually means that the thing being described is not actually plain nor clear.

And it would seem that the applicants do have a point here (if a weak one) as the relevant section does appear to acknowledge orders being made other than under the coronavirus legislation.

But such an acknowledgment does not, by itself, create jurisdiction to make an order – the applicants still need to show the legal basis for their application, and they did not convince the court that they had one.

Ingenious legal submissions almost always fail.

Having asserted that the relevant law is ‘plain’ and ‘clear’ the judge, of course, has to explain the law yet further, and he does so in paragraph 166:

‘166. Nothing in s. 86B purports to define or expand the scope of the court’s powers to authorise broadcast and recording. Those powers are set out in s. 86A. That provision would not have been drafted as it is if the intention were to empower the court to permit recording other than for the purposes of record-keeping.’

Of course, if the law was actually ‘plain’ and ‘clear” then the judge would not need to keep on explaining it, as the law would, well, be plain and clear.

And again the court overlooks the fact that most broadcasting requires a pre-recording stage, and parliament did not expressly limit broadcasting to simultaneous live-streaming.

Paragraph 167 then sets out that there is a general prohibition on pre-recording for the purposes of broadcast and that this prohibition stands in this particular case:

‘167. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.’

In other words: the court would not be able to make such an order even if it wanted to do so.

It is a question of jurisdiction, not the merits of the application.

The judge has therefore not decided against making the order as such, but has decided that he does not have the power to do so.

But what about open justice?

For just as the roles of judges, lawyers and parties are now performed online during the pandemic, what about those who would sit in the public gallery?

In the last paragraph of the judgment, the judge explains how this important issue is addressed:

‘168. This does not generally, and did not in this case, prevent the public from having access to proceedings conducted wholly by video in the Administrative Court. In line with the Court’s usual practice, the cause list published on the day before the hearing included an email address through which any member of the public could apply for access to the online platform. All 19 who applied were able to access and watch and listen to the proceedings in this way. The proceedings were therefore at least as accessible as they would have been if held in court.’

This is a good point, well made by the judge.

Anyone who wanted to see the proceedings was able to do so, in the same way a person can go along and sit in a court if they want to do so.

But.

‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.

The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.

The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.

That is, to invoke a phrase, topsy turvy.

The mild teasing of the court above does have a serious point.

In public interest cases where the hearing comprises lawyer-on-lawyer action (and not any witness evidence) there is no good reason for the proceedings not to be more widely available.

This is not to suggest a free-for-all – such broadcasts can be done subject to the specifications of the court.

But a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.

It is possible to read section 85A as permitting such a broadcast and, if so, the high court did have the jurisdiction.

Another judge may have taken a more robust approach to the opportunity provided by the coronavirus legislation for such a broadcast to be permitted.

It was a pity that such a production was not possible here.

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The ‘war on woke’ and law and policy commentary – and the importance of responding to illiberals but not on their terms

19th February 2021

There are various ways of seeing the current ‘war on woke’ being promoted by certain politicians and their media supporters.

One is to see it as a growing threat: that certain divisive issues are being ‘weaponised’ by those seeking and holding political and media power as a means of mobilising and consolidating sufficient support so as to obtain and maintain political and media power.

Another way is to see it is as the signals of declining political and media power: certain divisive issues are being ‘weaponised’ with increasing frequency as a means of holding off falls in political and media support, with each promotion of illiberalism illustrating the law of diminishing returns.

Either – or neither – of these things may be true.

One hopes for the latter, but one fears the former.

And perhaps which one is (or will be) true is down to what liberal and progressive people do now, as few things in human affairs are inevitable in any direction.

But there is the question of how, if at all, a law and policy blog should engage with each of these blows of the trumpet.

Should each blast be taken with anxious earnest solemnity – and risk being ‘owned’ like a ‘lib’?

Should one point and laugh and jeer – and risk being portrayed as having some metropolitan sneer?

Both of these responses are, of course, factored into the provocations – they are the desired results of the pulls on the chain.

Yet a third response, of ignoring the provocations – not ‘feeding the trolls’ or ‘giving oxygen’ – carries the risk of something significant being ignored that can then grow and manifest itself into a thing unwanted: such as the lack of engagement with Ukip ended up with a Brexit with the United Kingdom outside the European Union single market and customs union.

So what, if any, is the best chess move to make?

The approach of this blog – for what it is worth – is to acknowledge that there is an attempt to start a culture war, but to not participate on the terms of the aggressor.

As a previous post asked: what happens if they started a culture war and nobody turned up?

Instead – perhaps too boring and unconfrontational for the tastes of some – the claims of illiberals will be patiently set out and the merits of those claims examined.

Invariably those claims will be found wanting.

And that will be because the claims are not intended to be serious contributions to law and policy but instead political – indeed, populist – speech acts.

Such claims need – somewhere – to be pointed out as such.

But this approach itself is problematic.

As I have previously averred, pointing out lies and disinformation does not make any difference if people want to be lied to – or do not care.

https://twitter.com/davidallengreen/status/1205258913911844870

But it is a public good anyway, and it still should be done even if there are no obvious benefits.

And at least it will be a resource for those who do want to know the facts of matters before making media and political choices.

The reason for setting this out is that have some have critically responded to recent posts – for example setting out how a government minister was getting the law about statues wrong or how a pro-Brexit politician was misrepresenting the Human Rights Act and what, if any, was the significance of such misinformation.

It was contended that these very acts of engagement were wrong – that it, to use that most dire of hackney phrases, ‘played into their hands’.

I think, however, what ‘plays into their hands’ is to allow your response to be defined by the provocation.

Dull, plodding, matter-of-fact posts setting out the false law and policy premises and incorrect facts about various provocative claims do not seem to me to be ‘knock-on’ effects that are desired by the provocateur.

Indeed, it may well be the most irksome of all possible responses – for it removes credibility without adding any drama or excitement.

Of course: such responses do little or nothing directly to politically counter the provocateur.

For that, one must look to opposition politicians for leadership.

And that is certainly not a job for a non-partisan blog – for partisanship is the enemy of useful commentary.

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The significance of the appointment of Lord Frost as a cabinet minister for Brexit

18th February 2021

Compare and contrast two government statements.

The first – which was released to the media though not (it seems) published on the government website – is from just before Christmas 2019.

The statement read:

“The Department for Exiting the European Union will be wound up once the UK leaves the EU on the 31 January.

“DExEU staff have been spoken to today. We are very grateful for all their work and we will help everyone to find new roles.”

The notion was that, now Brexit had been ‘delivered’ there was no need for a cabinet-level minister to be dedicated to Brexit.

Thank you to @SteveBarclay, @LordCallanan, @JamesDuddridge and to everyone at DExEU for all of your hard work and dedication in getting Brexit delivered.
— Boris Johnson (@BorisJohnson) February 1, 2020

But Brexit had not been delivered.

Brexit had hardly begun.

For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end.

This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.

Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.

That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.

The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.

And so we come to the second government announcement, from yesterday.

Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.

First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).

Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.

And the cabinet office – and thereby Gove – has many other responsibilities.

Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.

The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.

Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.

The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.

And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.

As such he will be responsible to parliament directly.

Not all government decisions – even with Brexit – are calamitous.

Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.

Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.

But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.

If so, perhaps Brexit reality is finally seeping in.

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Why is the Human Rights Act 1998 still so contested? And what can be done about it?

Ash Wednesday, 2021

The political hobgoblin is at it again.

As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.

As such, this politician should be taken seriously – though not on his own terms.

All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.

But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.

Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.

Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.

So what should one make of this complaint about the ‘EU Human Rights Act’?

One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.

The politician(s) saying otherwise know this, but they do not care.

They are getting the ‘likes’ and RTs and claps and cheers anyway.

And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.

But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.

And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?

And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.

The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.

This survival may make the act’s defenders and champions complacent.

But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.

And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.

If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.

The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.

And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.

After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.

After twenty years of legal effect, the Human Rights Act 1998 is still contested.

It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.

Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.

Part of this perhaps is because of the name of the legislation.

Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.

And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.

Here, ‘New Labour’ may be blamed, as for many other things.

For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.

Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.

Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.

Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.

And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.

But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.

As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.

Poor old Mr Woogie.

And what the Human Rights Act gets right is also overlooked.

Take for example the new Hillsborough inquest.

That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.

The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.

And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.

But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.

There are many other examples, but none that have traction in the public domain.

And so we are left with the occasional outrages instead.

Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.

The act is not an especially powerful statute.

It provides a basis for a court to take a right under the convention seriously, but it does little more than that.

Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.

And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.

The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.

The act does not do a lot, but it does enough – and it is far better than nothing.

But a practical and pragmatic case for something that is ideoologically contested is difficult.

Brexit showed this.

So how does one defeat the political hobgoblins?

By realising that there is a case to be made for a thing that is contested – and by making that case.

By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.

This approach, of course, has no guarantee of success.

But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.

And sometimes contests can be won as well as lost.

The outcome of a contest may not be predetermined.

Ask Mr Woogie.

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An introduction to Article 16 of the Northern Irish Protocol

16th February 2021

Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.

The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.

The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.

In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.

This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.

As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.

By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.

Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.

Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.

And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.

The protocol, in turn, does not exist in isolation.

The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.

The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:

Not just specific, but ‘very specific’.

You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.

Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:

You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.

The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:

Now we can turn to the protocol itself.

Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.

And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).

Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.

In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.

The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.

And these recitals, in particular, are significant:

And:

Note the word ‘guarantee’.

And:

A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.

These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.

And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.

Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.

You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).

There are also provisions for State aid and VAT.

The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.

It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.

But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.

And this brings us to Article 16.

Article 16 comprises just three paragraphs:

The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.

The first paragraph then provides the triggers for the safeguards.

There are two triggers.

First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.

Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.

Second: ‘if the application of this Protocol leads to…diversion of trade’.

Again, ‘diversion’ indicates something significant and lasting.

If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.

Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.

Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.

And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.

Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.

These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.

And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.

Annex 7 contains six ‘points’:

You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.

Point 2 then provides that the next stage is consultations.

Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.

Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.

All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.

The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.

This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.

In simple terms: that is not what the safeguard measures are safeguarding.

Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.

But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.

Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.

For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.

What – or who – shall safeguard the safeguards?

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Why political conservatives should embrace free historical inquiry – rather than imposing and promoting an official version of the history of the United Kingdom

15th February 2021

Another weekend, another Sunday newspaper splash from the government and its media supporters hoping to have a culture war to which their opponents will come.

From yesterday’s Sunday Telegraph:

Now, having digested (or otherwise) this ‘torpedo’, let us go back thirty-or-so years to a time when political conservatism in the United Kingdom was in a far more intellectually confident state.

The late 1970s and 1980s was when a range of conservative (big ‘C’ as well as little ‘c’) academics and public intellectuals were challenging (perceived) orthodoxies in many intellectual disciplines: economics, sociology, and so on.

In the historiography of the United Kingdom, in particular, many received versions were being questioned.

Jonathan Clark and others were subverting the ‘whig’ or ‘Enlightenment’ view of the ‘long eighteenth century’ of 1660-1832 and were urging instead that religion generally and Anglicanism in particular be taken seriously as an explanatory means of understanding political and social change – and lack of change.

For the nineteenth century, John Vincent and Maurice Cowling were disputing that the widening of the franchise in the 1860s was to do with any sense of democratic progress, and were contending instead that it was far more about the cynical political opportunism of the politicians involved.

In respect of the twentieth century, Correlli Barnett was confronting the comforting origins of the post-war welfare state consensus with an equally discomforting counter-narrative in his Pride and Fall sequence.

A brilliant young historian named Andrew Roberts took on head-first the most cherished of recent British myths in a book entitled Eminent Churchillians – the poundering revisionism of which would make even the most devoted admirer of Netflix’s The Crown blush.

(Eminent Churchillians remains Roberts’ best book by a country mile – and its demolition of Arthur Bryant’s patriotic history a delight.)

There were many others.

It was a fascinating – exciting – moment to be a student of history (as I was).

And all this at a time when communism (in its post-war form) was about to come to an abrupt end, notwithstanding the claims from a few (if not the many) that such a system was historically inevitable.

Thirty years later, no doubt little of this intellectual energy has perhaps left a lasting historiographical mark.

The weaknesses and faults of these historians and their histories have, in turn, been exposed.

Historiography has moved on.

But at the time it signalled an unafraid seriousness to take on and replace versions of history on which liberal and progressive pieties often rested complacently.

And it was not an accident that these academic challenges were concurrent with the politics of Thatcherism that also sought to take on the certainties of left wing and centrist positions.

So it seems telling that the conservatives of today do not share the intellectual confidence of their counterparts of thirty-or-so years ago.

Instead of taking on histories that show the precariousness of the ‘Union’ of the United Kingdom, or how much British economic development depended on the ownership of slaves and the system of slavery, or how the British empire was as just as exploitative and brutal as any other empire – these discomforting challenges to the conservative worldview are to be ‘torpedoed’ by bureaucratic directions instead.

Many ideologies have, as a component, a theory of history.

Certainly many ideologues do.

And this is true for internationalists as well as nationalists, liberals and progressives as well as conservatives, Remainers as much as Brexiters, and so on.

One test of the soundness – indeed robustness – of that ideology is how it copes with fundamental challenge.

Are the ancient tools of ‘heresy’ and ‘blasphemy’ re-fashioned with modern guises so as to do the work of closing down unwelcome subversions?

Or are the foundations of the ideology more robust than that?

(And there is always the question of whether a thing is an ‘ideology’ just because you say it is.)

A great deal of modern political conservatism – now hardening into the worship of plaster and plastic heroes – was based on the questioning of received historical conventional wisdoms in the 1970s and 1980s.

And now conservatives want to pull their intellectual shutters down, pull up the historical drawbridge, and fill the moat with torpedoes.

Those who support the current government of the United Kingdom – and the view of the British past that it promotes – should relish taking on the historiographical challenges presented by a more-rounded understanding of the history of these islands and of their economic and imperial history.

For if that ‘Brexit’ understanding of British history was valid then current Brexit positions will be validated.

And if those understandings are invalid, then it will show that the Brexit endeavour may itself be misguided.

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The acquittal of Donald Trump – a silver lining

St Valentine’s Day, 2021

Of course: former President Donald Trump should have been convicted yesterday.

The reasons for this are neatly summarised in this statement by one of the republican senators who voted to convict on impeachment:

My statement on today’s impeachment vote: pic.twitter.com/Hfk8yqToPr
— Mitt Romney (@MittRomney) February 13, 2021

If anything justified a conviction on impeachment, and thereby a disqualification from holding office again, then it was what happened on 6 January 2021.

Yet Trump was acquitted.

Whatever the reasons for his acquittal – and it is difficult to see anything other than hyper-partisanship as the motivation for those voting against conviction – the brute fact remains.

This impeachment failed to result in a conviction.

And so Donald Trump goes from being the only president of the United States to have been impeached twice to now also being the only president to have been acquitted twice.

Failure sucks, defeat sucks.

It was absolutely the right thing to do for the house of representatives to impeach Trump.

And nothing in this post should be taken to mean that it is somehow a good thing in and of itself that the trial on impeachment failed to obtain a conviction.

But.

There is a silver lining.

An impeachment is and should be an exceptional thing – it means that an official (or former official) faces a sanction other than in the normal course of the operation of the constitution.

So, for an elected office holder, it means a sanction other than removal by means of the election cycle (or term limits).

And for a former elected office holder, disqualification means that he or she cannot be elected again, regardless of their popularity.

Impeachment and disqualification mean a thing so bad has happened that it should not just be left to the voters at the next election.

One problem, however, of Trumpism – that authoritarian nationalist populism for which some fairly would use the ‘F’ word – is that it would not have automatically have disappeared if there had been a conviction.

Trump and Trumpism are not going away.

Trumpism – and Trump himself – would have weaponised the conviction as a mere technicality – a Washington device to prevent Trump from standing again in four years’ time.

It would have been presented as – and no doubt widely seen as – an attempt to defeat Trump and Trumpism by non-electoral means.

A stab in the back.

Trump and Trumpism are not going to be defeated just by constitutional procedures.

Instead: Trump and Trumpism have to be defeated electorally, and be seen to be defeated electorally – and, if need be, this has to be done again, and again, and again.

Trump and Trumpism have to fail politically – and to keep on being seen to fail politically.

For it is in the nature of Trumpism that any other setback will be exploited as evidence that the ‘elite’ are somehow frustrating the supposed will of the people.

Of course, this is not easy – and Trumpists are are already ‘poisoning the wells’ by seeking to discredit the electoral system itself.

But they would not even have to resort to this if they could point to Trump’s exclusion from standing again by anything other than his own electoral unpopularity.

The failure to convict Trump – and thereby the failure to disqualify him from office – is a huge setback for liberal democracy.

But it is also an opportunity to electorally defeat him, and the horror for which he stands, all over again.

(And to aver this is a silver lining is certainly not to deny there is a dark cloud, for a dark cloud is always what any silver lining presupposes).

During the first part of the Trump presidency there was the tendency for some liberals and progressives to look at the Mueller investigation as a form of cavalry of knights who would ride in and save us from our distress.

While more hard-headed and worldly campaigners knew that the next election had to be won precinct by precinct, in the environs of Atlanta and elsewhere.

The reason for this lazy tendency was the political trick of mind that prefers the easy quick-wins of legal and legalistic processes, instead of the work of winning elections (and referendums) and defeating illiberals.

(A similar frame of mind in the United Kingdom led to some looking to the Electoral Commission and police investigations of Leave campaigns to save us from the result of the 2016 referendum.)

And although the complaint is often made of legal commentary on public affairs that it overlooks and underestimates the political element, often the reverse is true.

Laws and legal process are tools for certain tasks – but they are not a substitute for what should be left to politics and elections.

So: yes, the second impeachment of Trump should have ended with conviction – we all know this.

That is what impeachment is for.

Trump should have been held directly accountable for what he did and did not do on 6th January 2021.

He should have been held accountable.

But impeachment is not the only form of accountability.

There may be better and more effective ways to hold him and what he stands for accountable too.

And any defeat will then be all the more emphatic.

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Why not every discussion about the Crown should be just another debate about its abolition – and what Netflix’s ‘The Crown’ gets right

13th February 2021

This week the Guardian has run a sequence of pieces about the right of the Queen and the Prince of Wales in respect of proposed legislation that affects their private interests.

See here, here, and here.

Such a right is, as this blog averred, unacceptable and should be abolished (and indeed could be easily abolished without even an act of parliament).

But even mentioning this particular wrong triggered the usual broader reaction: ‘Let’s abolish the monarchy while we are at it’.

And so a particular point becomes the most general of demands, and in the end – as always – nothing will be done about either of them.

This is, in live action, the constitutional utopianism recently described by this blog (here and here).

It is similar to what happens with any attempt to highlight or expose a constitutional wrong by the government.

There such an exposure or highlight triggers the general demand for a written (that is, codified) constitution.

And again, nothing ends up being done to address, still less remedy, the specific problem.

(I have set out in this provocatively titled Prospect column, why we should stop talking about about a written constitution.)

These general reactions are not so much ways of thinking about constitutional issues but a way of not thinking about them.

You hear or read of a problem, type out your demand in a tweet or other comment, bit ‘enter’ and gain a ‘like’ or even a retweet, and: job done!

But the job is not done.

In fact, nothing gets done.

And the constitutional abuses carry on as before.

Of course, there is a strong if not compelling case – in principle – for republicanism in any mature polity.

Strange women lying in ponds distributing swords is no basis for a system of government.

Supreme executive power should derive from a mandate from the masses, and not from some farcical aquatic ceremony.

(Ahem.)

Against the strong if not compelling case for republicanism as a matter of principle, however, there is a plausible case as a matter of practice for the monarchy in the instance of the United Kingdom.

This practical argument is not so much about what powers the Crown has – but what powers it prevents others from having.

In particular, the office of prime minister has few direct and express powers (and indeed there are relatively few mentions of ‘prime minister’ in statute or case law), meaning that almost all exercises of prime ministerial power are negotiated and are thereby contestable.

Even the convention that Crown will do whatever the prime minister ‘advises’ was shown to be open to challenge by the supreme court of the United Kingdom in the second Miller case.

These checks and balances on ultimate executive power are weak – but the challenge for any republican is that they should show how any replacement to the monarchy would also have checks and balances.

For a solution to the problem of the monarchy that would mean even more unchecked and imbalanced executive powers would not be an improvement – at least not from any liberal perspective.

In constitutional theory the Crown is the ultimate basis of not only executive power but legislative power (the ‘Queen-in-Parliament’) and even the judiciary (the Queen-in-her-courts).

This can lead to pleasing if not amusing events such as an application for judicial review brought in the name of the Crown (‘Regina‘) in respect of the exercise of the royal prerogative to prorogue parliament so that there can be a new Queen’s speech.

(That was the constitutional essence of the second Miller case.)

An understanding of the Crown therefore is essential to understanding at least the theory of the current constitutional arrangements of the United Kingdom.

And as the ‘United Kingdom’ label on the tin suggests, the Crown is the single most significant unifying factor in the current political union of England, Scotland, Wales and Northern Ireland.

If and when there is a republic then what replaces the Crown will also have to function as this all-purpose constitutional glue.

This is not to say abolition of the monarchy should not be done – but, like Brexit, there will be an awful lot of work to do just to duplicate current arrangements under a new label.

And, again like Brexit, the question has to be whether it would be really worth all the time and effort, regardless of your position as a matter of principle.

In the meantime, the powers of the Crown – both in respect of the public powers of the royal prerogative and the private powers such as the Queen’s Consent – still need anxious scrutiny.

That there is a broader question of whether there should be a republic should not mean any narrower questions should be disregarded.

The one thing that the Netflix series The Crown gets right – even if it gets a lot wrong in respect of historical detail – is that it conveys that the monarchy is an ongoing work-in-progress.

The Crown adapts, and it seeks to avert or survive crises with a combination of stubbornness and reinventions: an institution highly alert to its own precariousness.

And those who want to limit the misuses of the power of the Crown (and what is done in its name by the prime minister and others) should adopt a similar but opposite approach.

For keeping the powers of the monarchy properly in check is also an ongoing work-in-progress.

And in the happy event that we do one day become a republic, then keeping the powers of any presidency would also be an an ongoing work-in-progress.

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The ‘Jeremy Corbyn test’ or the ‘Hillary Clinton test’ – how to uphold constitutionalism in an age of hyper-partisanship

12th February 2021

Yesterday this blog averred that the twin perils of constitutionalism – at least from an English law perspective – were 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.

Constitutionalism in a tweed jacket.

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!

Constitutionalism waving a placard.

Both fogeyism and utopianism are normative approaches to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

But there is a far greater enemy for constitutionalism than either fogeysm or utopianism – both of which are at least often based on a sincere interest in constitutional affairs.

This greater enemy is hyper-partisanship.

For hyper-partisanship is the dark matter of constitutionalism.

It is anti-constitutionalism.

Constitutionalism is the view that politics and government should normally take place within an agreed framework of principles and practices that regulate what happens when there are political tensions.

Of course, there will be – and should be – tensions within any polity – for that is the very stuff of politics.

Without tensions you do not even have politics.

The constitution of the polity then provides how these tensions are reconciled before they harden into contradictions: who gets their way, and on what basis.

Hyper-partisanship, in turn, is the view that the constitution is – and should be understood to be – an entirely partisan device.

This goes beyond the normal partisanship of the party battle and the clash of politicians.

Hyper-partisanship weaponises the very constitution as part of those conflicts.

In particular, there will be no protection in the constitution – no check or balance – that cannot be dismissed as being politically motivated.

The senate trial of the second impeachment of Donald Trump is an illustration of such hyper-partisanship.

There are republican senators who will vote to acquit Trump regardless of the merits of the case.

Similarly, no doubt, there will be democrat senators who will vote to convict Trump regardless of the merits of the case.

And this is notwithstanding that the constitutional purpose of impeachment is to address the issue of how to deal with certain behaviours outside of any election cycle.

If an otherwise impeachable offence could just be dealt with by the choices of electors then there would be no point having the power of impeachment.

Impeachments should not be partisan matters.

Here it is perhaps useful to employ what can be called the ‘Jeremy Corbyn test’ – or, for the United States, the ‘Hillary Clinton test’.

That is to imagine in any constitutional controversy the politician(s) at stake being the opponents of the politician(s) at stake.

So, instead of Trump it would be Clinton.

And instead of Boris Johnson it would be Corbyn.

Would the current republican senators who are solemnly contending that the trial of Trump is ‘unconstitutional’ or insist that his conduct before and during the insurrection on 6 January 2021 was (literally) unimpeachable say the same, all other things being equal, if the proceedings were against Clinton?

Similarly, would political and media supporters of the government of the United Kingdom still nod-along (and indeed clap and cheer) if it were Corbyn threatening to break international law in respect of Northern Ireland?

Of course not.

Indeed, in respect of the Clinton example one only has to look at the casual republican partisanship of the impeachment of Bill Clinton in 1998 to show how easily roles can be reversed.

So the basic test for any politician or media pundit when invoking any argument from constitutional principle should be simple.

Would that politician or media pundit still assert that principle, and just as emphatically, in respect of a political ally or opponent, as the case may be?

‘Would you say the same, if it were..?’

If so, the assertion of that constitutional principle has proper purchase, and it should be taken seriously.

And if not, like an unwanted book of David Hume, the contention should be committed to the flames, for invariably it will be sophistry and illusion.

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Why Vernon Bogdanor’s Telegraph piece needed a response – and why the constitution of the United Kingdom does not care about your nostalgia

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.

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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