Category: Criminal Law

Why the whole-life sentence for the murderer of Sarah Everard is correct

30th September 2021

Earlier today the murderer of Sarah Everard received a whole-life sentence.

Such a sentence is exceptional – the relevant statutory provision sets out five express instances where this sentence can be imposed:

‘(a) the murder of two or more persons, where each murder involves any of the following— (i)a substantial degree of premeditation or planning, (ii)the abduction of the victim, or (iii)sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,

(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(e) a murder by an offender previously convicted of murder.’

But if you read the provision carefully, you will see that these five categories are not a closed list, but are instead examples of offences where the ‘the seriousness of the offence…is exceptionally high’.

The use of the word ‘include’ in paragraph 2(2) of that provision tells us the list is (as lawyers say) non-exhaustive.

In other words: other offences can warrant a whole-life sentence if ‘the seriousness of the offence…is exceptionally high’ – and what constitutes exceptionally high seriousness can be reckoned by comparison with the five express categories.

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The murderer of Sarah Everard – and, no, I am not typing out his name – does not on the face of it fall within the five express categories.

There was not more than one victim (so not (a)), who was not a child (so not (b)) nor a police officer (so not (c)), the murder was not done for any of the specified causes (so not (d)), and the murderer has no previous conviction for murder (so not (e)).

But these are only five illustrations of where ‘the seriousness of the offence…is exceptionally high’.

That said: it would not be enough for a judge to merely assert that an offence had sufficiently high seriousness so a whole-life sentence can be imposed.

Such a sentence would be open to being successfully appealed.

And so the task of a judge imposing a whole-life sentence when the circumstances are not one of the five categories is a difficult one.

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In the case of the murderer of Sarah Everard it seemed to me before sentencing that there was a real possibility that the judge would find a away to impose a whole-life sentence in this case.

This was because at the sentencing hearing the prosecution set out that it seemed that the offence was committed by a police officer using police powers.

And just as the law on whole life sentences recognises the special nature of police powers at (c) – ‘the murder of a police officer or prison officer in the course of his or her duty’ – it seemed to me that a murder committed by a police officer by means of the use of their police powers was comparable.

But – as Joshua Rozenberg this morning averred at his blog – it was not inevitable that the judge would find a basis to find an exception in this case – even though on the basis of the (uncontested) evidence set out in court a whole-life sentence seemed appropriate.

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The judge – Lord Justice Fulford – did set out a basis for a whole-life sentence in this basis, and this is contained in paragraph 19 of the sentencing remarks (which should be read in full).

Here I set out paragraph 19 and I insert my comments in brackets:

‘The most important question in this sentencing exercise, therefore, revolves around a question of principle: if a police officer uses his office to kidnap, rape and murder a victim, is the seriousness of the offence exceptionally high, such that it ought to be treated in the same way as the other examples set out in paragraph 2(2).

[Here the judge emphasises the fact that the murderer had used his police powers.]

‘In my judgment the police are in a unique position, which is essentially different from any other public servants. They have powers of coercion and control that are in an exceptional category. In this country it is expected that the police will act in the public interest; indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in the constabulary, that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.

[The special position of police in our society is emphasised.]

‘In my judgment, the misuse of a police officer’s role such as occurred in this case in order to kidnap, rape and murder a lone victim is of equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause.

[Here the judge takes (d) as the comparator of the specified categories, and not as I suggested (c) – and you will see why next.  And note: it is not enough for the judge to assert that it was equally serious, and so he has to reason it out.]

‘All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life. It is this vital factor which in my view makes the seriousness of this case exceptionally high.

[The judge argues that the values behind (d) are applicable in this case, as the manner of the murder undermines the rule of law – and now, having made that argument, he ties it to the facts of the case.]

‘Self-evidently, it would need for the police officer to have used his role as a constable in a critical way to facilitate the commission of the offence; if his professional occupation was of little or no relevance to the offending, then these considerations clearly would not apply.’

[Here he is careful to distinguish this case from situations when a murderer happened to be a police officer – for what makes this case exceptional is that the police powers were used in such a way that undermined the rule of law.]

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This sentence may be appealed – and as it rests on an exception rather than an express category, it is possible that the court of appeal may substitute a lesser life sentence.

But.

Lord Justice Fulford is a senior and experienced criminal judge – and indeed it is rare for a Lord Justice to preside at any trial – and the reasoning in paragraph 19 is (in my view) compelling.

It is difficult to imagine better reasoning for a case to warrant a whole-life sentencing outside of the five express categories.

(And, in any case, an appeal may well be moot in this case, as the new sentence is likely to still mean the murderer is never released.)

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Of course: there is a certain arbitrariness in whether a murder gets a whole-life sentence or not.

Had the facts been that Everard had got into that car for any other reason than by use of police powers, the ordeal would have been just as terrifying, but it would not have ended with a whole-life sentence for the murderer.

Or had the murderer only been pretending to be police officer, and so was not actually using police powers, it may also not have ended with a whole-life sentence for the murderer.

Victims of other murderers will suffer as much if not worse than murderers caught by the whole-life categories, but their murders will get shorter sentences.

And, of course, the victims of other murderers are not any less dead.

There is something to be said for the whole-life tariff being the starting point for murder, only to be reduced with mitigation.

(Though many other liberals will disagree, but there is nothing in my view inherently wrong with life-meaning-life for murder, notwithstanding the view of the European Court of Human Rights.)

But.

If there are to be whole-life sentences only for a minority of murder cases, then it must be right that murderers who use the coercive powers conferred by the state to commit those murders are treated as if they are attacking society itself.

And this is why the sentencing remarks of Lord Justice Fulford setting out how this offence warrants a whole-life sentence are (in my view) spot-on and we should hope this sentence survives any appeal.

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The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

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The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

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And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

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Some refreshing comments against the glamourisation of serial killers and the woo-woo of criminal profiling

15th September 2021

One of the ugliest aspects of modern culture is the glamourisation – and monetisation – of serial killers.

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In From Hell by Alan Moore and Eddie Campbell, about the Whitechapel murders, an opportunistic salesman sets up stall after the body of Catherine Eddowes is found in Mitre Square:

We then go to the reaction of the investigator Detective Abberline:

And then, in Moore’s footnotes to the story:

Quite.

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The best thing, of course, to read on those killings is Hallie Rubenhold’s The Five.

Here Rubenhold pulls together the extant information about the lives of each of the victims for a sequence of compelling social histories.

Rubenhold explains how the victim’s social and economic predicaments – especially the then-common outdoor sleeping of the Victorian poor – made them easy to kill.

And also how social prejudices about (supposed) prostitution meant the murders were not taken seriously.

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In The Collectors episode of The Sandman, Neil Gaiman and Mike Dringenberg depict a convention of serial killers, with all their braggy self-importance.

But at the end of the convention these proud killers are stripped of their glamours:

And they disperse as pathetic losers.

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It is not just comics.

The serial killer as a figure whose ‘mind’ we are supposed to ‘enter’ is a staple of modern fiction – and modern non-fiction.

Take the pseudo-science of ‘profiling’.

It certainly makes great film and television:

But profiling is mainly woo-woo – at least to the extent to which it is based on individual subjective assessments rather than broad statistical analysis.

(See here and here – but also here.)

And the glamourisation – and monetisation – of serial killers continues.

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So it was against this background when I stumbled on the following YouTube video.

I was expecting more of the same Cracker and Mindhunter tish-tosh.

How wrong I was.

Instead of the usual pseudo-science, Professor David Wilson takes us on a refreshingly sensible and unimpressed guided tour of well-known and less well-known depictions of serial killers.

This is Wilson on Lecter:

“I have encountered serial killers who have tried to scare me, but I wouldn’t be scared by Anthony Hopkins.

“I’d have laughed, frankly, if you’d told me about fava beans and a nice Chianti.”

The video is worth watching from beginning to end – and the end is brilliant (here is the video at 27:54):

Wilson refers to the “trope that we see in a lot of Hollywood movies, that people like me would try and enter the mind of a serial killer.”

He then concludes the video:

“I am not interested in what motivates a serial killer.

“I am much more interested in who it is the serial killer is able to kill.

“If we concentrated our attention on the groups that serial killers constantly target, we would do a lot more to reduce the incidence of serial murder in our cultures, as opposed to any number of offender profilers who claim that they can ‘enter the mind of a serial killer’.

“If you really want to do something to reduce the incidence of serial murder in our culture, let’s challenge homophobia, let’s have a grownup debate about how we police those young men and young women who sell sexual services, and above all, let’s try and work out why the elderly are so vulnerable in our culture because they don’t have a voice and have no power.”

Quite.

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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

*

For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

**

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The 2011 Riots, ten years on

1st August 2011

Ten years ago I went along to the south London shopping centre expecting to report on a riot.

At the time I was legal correspondent for the New Statesman, and all that day I had seen on Twitter that, among other places, there would be disorder in Bromley – and I was interested in what the reaction of the police and the courts would be.

But there was not a riot.

And so in a splendid exercise of journalism, I filed a piece on a riot not taking place.

The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ, and certainly the only one that has ever been published that has been taken by me.

*

Elsewhere, however, there were riots.

Following the riots, there were speedy arrests and speedy prosecutions.

And, in turn, there were speedy convictions – and, I recall, very harsh sentences.

At the time the sentences seemed disproportionate and were meant to be disproportionate.

Today, ten years later, it is reported that a prosecutor from the time had/has doubts as to the severity of the sentences.

But at the time, few if any cared – the defendants ‘should have known better’ and they ‘got what they deserved’.

My view at the time was that it would have been better to prosecute and convict on a normal basis – to show that the legal system was not easily shaken into exceptional behaviour.

To, in a way, normalise things.

But those who supported the harsh sentences would point to the (relative) lack of riots since – as if there was a simple monocausal relationship between sentences and riots.

As it happens, many of the preconditions for the 2011 riots still seem present – and, indeed, they are always present.

And one wonders whether the harsh sentences (and decisions to prosecute) ten years ago have done more damage socially in how they have affected the lives of those, as the Guardian piece describes them, were ‘caught up’ in the riots.

Such injustices never are warranted – even as a deterring example to others.

An injustice is always still an injustice.

**

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We need a stop-and-think approach to policy, not a stop-and-search policy

27th July 2021

Today there was a crime policy announcement.

Yet again, something or other will be ‘tougher’.

Like historians who say the middle class is always rising and the gentry always declining, crime policy is always getting ‘tougher’.

How can anybody involved in formulating and promoting this ‘policy’ keep a straight face?

Even the details of the policy are risible.

Pure ‘law and order’ theatre.

Convicts in high-vis jackets – for show.

A police officer with contact details – for show.

Stop-and-search policies without the need for suspicion – for ‘confidence’.

No thought, no substance – no thinking about rehabilitation, no thinking about a sensible and proportionate drugs policy.

And none of this new.

It is a staple for home secretaries of both main parties to want to introduce -in effect – the public humiliation of chain gangs.

As if that would have any beneficial effect for anyone.

There is already a police officer designated in charge of a case.

And indiscriminate stop-and-search creates tensions and conflicts in communities – and leads to the lack of confidence in the police.

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All shallow-showy or counter-productive stuff.

Nothing serious, even from a ‘small-c’ conservative perspective, let alone from a sensible liberal perspective.

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What we need is not a stop-and-search policy but a stop-and-think policy.

But – as this blog has previously averred – we have politicians more interested in ‘Law and Order!’ – complete with capitals and an exclamation mark – than actual law and order.

This is newspaper column material – but without even a reasonable suspicion of serious policy.

Appropriately, the best response was from cobblers:

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Threats to doctors and nurses and lifeboat crews – and why laws and law enforcement are not enough

25th July 2021

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‘…we are indeed drifting into the arena of the unwell. Making an enemy of our own future.’

– Marwood, Withnail and I

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Every so often it seems that the culture wars are coming to an end, and then you get extraordinary things like this:

A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.

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People are abusing lifeboat crews.

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Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.

Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.

*

Those who defend such abuse may seek to say that it is only ‘freedom of speech’.

But no society has absolute free speech.

An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.

And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.

But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.

Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.

And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.

The ultimate issue here is not a public order problem with a neat legal solution.

The issue is cultural and political and social – and so only looking to the law would be an error.

There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.

Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.

Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.

Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.

But such prosecutions would not make the problem go away.

Something deeper and more disturbing is afoot.

Brace, brace.

**

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

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.

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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