In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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.
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.
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.
‘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’.
‘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.
‘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.
‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
‘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.
‘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.
‘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?
‘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.
‘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?
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.
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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