Category: The Union, Northern Ireland, Scotland, Wales

Will the United Kingdom’s constitutional excitements ever stop?

25th November 2022

The nights draw in, as another year comes to an end.

2022 will soon be over.

Yet, it does not look like the constitutional excitements in the United Kingdom will lessen.

The main opposition Labour party has opted to raise the issue of House of Lords reform or replacement; the third-largest party in the House of Commons – the Scottish National Party – are committed to somehow gaining independence for Scotland, despite (or because of) the Supreme Court judgment this week ruling out a unilateral referendum; and in Northern Ireland the shared power arrangements have long broken down, and there is a real prospect of a border poll.

And that is before we even come to the government of United Kingdom, with its various avowed intentions: to break international law by statute with a Northern Irish Protocol Act; to restrict the right to protest; to repeal the Human Rights Act and replace it with laws to make it more difficult to rely on human rights law; and to suddenly get rid of remaining European Union law without regard to what it does and what impact repeal would have.

This is not a happy polity.

Some of these issues – Northern Ireland and Scotland – are about serious fault-lines in our constitution, and these will need to be addressed, if not resolved.

Others are the sort of self-inflicted, unforced errors that are a feature of our current somewhat frenzied political culture.

But none of these are directly about the social and economic predicament of many of the people in the United Kingdom, or directly about health or education.

Or directly about the war in Europe or the energy crisis.

(Please note the “directly” before you type out comments saying “Actually there is a relationship…”.)

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As this blog has averred many times, constitutional law should be dull.

This is not because constitutional law is unimportant – it is fundamentally important.

It is because constitutional law sets the parameters of everyday political (and legal) action.

If those parameters themselves become the constant issue then there will be inefficiencies in that everyday political (and legal) action.

Few if any people want to watch a sporting contest where there are continual arguments with the referees and umpires, and eternal confrontations with the governing bodies.

Similarly, constitutional matters – that is, how public bodies get along and resolve tensions, or the boundaries between officials and those who are governed – are not themselves interesting to most normal people.

The opportunity cost of this post-Brexit preoccupation with constitutional matters, and this government’s infantile obsession with stoking culture war issues, is that insufficient thought and effort is going into many other areas of public policy.

These are the sorts of policy topics – the economy, welfare, defence – that should be the priority for public debate and political scrutiny.

Yes, from time to time, serious constitutional matters need to be attended to – and the futures of Scotland and Northern Ireland, and the relationship with the European Union – require careful consideration and realistic arrangements.

But otherwise our body politic seems rather worn out, and it needs a rest.

Our body politic cannot always be in a brace, brace position.

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An Article 50 for leaving the United Kingdom?

24th November 2022

A commenter over at Mastodon came up with this thought-provoking suggestion:

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You may recall our old friend Article 50:

This was the provision added to the European Union treaties in 2009 that enabled a member state to unilaterally and lawfully leave the European Union.

Before Article 50 was added, any member state that would have wanted to have left the European Union would either have had to have broken the treaties or negotiated an exit treaty.

(No member state did leave before 2009, though the departure of Greenland – part of the Kingdom of Denmark – from the European Economic Community in 1985 required a treaty.)

The new Article 50 ensured that any departure could be done lawfully and unilaterally.

(It was assumed by some that it would not actually be used.)

If a member state had wanted to leave then no other member state could then stop it.

The other member states, and the various European Union institutions, had no veto.

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What provisions do we have in the United Kingdom that approximate to Article 50?

For Northern Ireland we do have section 1 of the Northern Ireland Act 1998:

The decision to have such a poll, however, is a matter for the United Kingdom government:

So the people of Northern Ireland can elect for Northern Ireland to leave the Union, but only if the United Kingdom first consent to such a poll.

This is at least one step away from Northern Ireland having its own Article 50.

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For Scotland there is the possibility of a “Section 30 order” which would allow there to be an independence referendum, but – again – that order has to be given by the United Kingdom government.

But this is at least two steps away from Scotland having its own Article 50.

(And I am not any expert on Welsh devolution but a glance at the relevant legislation indicates that Wales may be three steps away, though I would welcome any comments on this.)

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If any of the constituent parts of the United Kingdom wished to (peacefully) leave the union there would, of course, have to be treaties and extensive legislation.

We know this, because it has already happened when Ireland left the United Kingdom.

Presumably a similar treaty and extensive legislation would be required if and when Scotland (or Wales) leaves the union.

There is nothing in place like Article 50 for Scotland or Wales or even Northern Ireland (or I suppose England) to activate unilaterally.

Should there be?

Discuss below.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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The one big problem with House of Lords reform

22nd November 2022

As today is a palindrome day – 22/11/22 – here is another palindrome: 111.

One hundred and eleven.

That is, the number of years since this statute was passed:

And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.

But one hundred and eleven years later, the House of Lords is still there.

For reform is easy to announce, but hard to accomplish.

And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).

There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.

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Of course, the House of Lords should be reformed or replaced.

Of course.

But how?

And here is a big problem about the House of Lords in our constitutional arrangements.

We need to first understand what a second chamber is for.

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Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.

And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.

This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.

You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.

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The House of Lords cannot veto any legislation.

And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.

But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.

How can this function be maintained – even enhanced – with reform or replacement?

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This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.

For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.

Repeatedly, routinely, almost daily.

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Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.

Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.

As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.

So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?

What is it actually for?

And then we should work backwards from that so as to see how it should be comprised.

By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.

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It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.

The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.

There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.

All easy, quick wins.

But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.

And that balancing exercise should not be rushed.

Though, of course, we should not have to wait another one hundred and eleven years.

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A “Swiss-type” post-Brexit arrangement with the European Union for the United Kingdom?

21st November 2022

We had another Sunday special this weekend:

The newspaper considered the story so important that it was splashed on their front page:

You may have prejudices – indeed Very Strong Opinions – about political journalists and Sunday newspapers, but the starting assumption here must be that the reporters and the editor believed this story had sufficient substance so as to warrant such prominence.

The story would not have been invented.

If you look at the report, the basis for the story is as follows:

And:

Reading this closely we can note that (a) this is set for the “next decade” rather than an immediate policy and (b) the source(s) quoted is(/are) not said to be ministerial level.

Although “ministers” are said to be “confident” about the “thaw”, the “senior government sources” in favour of this Swiss-type arrangement would appear to not to be ministers.

Had it been ministers, the newspaper would presumably have said so.

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Many readers of this blog will also have Very Strong Opinions about a Swiss-type arrangement.

I have two initial responses.

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The first is that this was another example of British exceptionalism and unilateralism, with the assumption that just because the United Kingdom wants something, it will get it.

Perhaps we can click our fingers and speak loudly and slowly in English as we demand this arrangement.

There seems no realisation that any agreement requires all parties to agree, and there is no indication that the European Union would want a Swiss-type relationship with the United Kingdom.

The European Union does not even want a Swiss-type relationship with the Swiss.

A Swiss-type relationship requires a number of discrete agreements to be negotiated and implemented in respect of sectors and subjects.

The European Union would be unlikely to have the patience or the inclination to deal with the United Kingdom, with the latter’s still-raw post Brexit politics and continuing governing party psychodrama, in such a fiddly manner.

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But.

My second response was a mild cheer.

Regardless of the impracticality of the suggestion, it at least showed a glimmer of realism in Whitehall that the United Kingdom does need to re-think its relationship with the European Union internal market and for that relationship to be placed on a better footing.

And if we read carefully, this was not a demand for action tomorrow, but a proposal for the direction of travel over the next ten years.

The source is correct that “it is overwhelmingly in the businesses interests on both sides”.

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But, but.

Today’s political news has been about the government denying this report.

I suspect that this denial is true too, on its own terms.

This denial is not incompatible with the actual words of the source quoted above, given Sunak and his government are unlikely to still be in power in three years’ time, let alone in ten years.

The commercial and economic pressures for a closer and more sustainable relationship will continue.

The politics, of course, are toxic – but there are at least two general elections in the next ten years.

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The preference of this blog is, as many of you will know, for a close association between the United Kingdom and European Union, with shared institutions and agreed processes, which would allow us to participate in the internal market.

(“But that will mean we are ‘rule-takers!’ “ will comment Pavlov’s commenters, not caring that we are now very much rule-takers in our current predicament.)

And such an association is better done as a single agreement rather than many Swiss-type bilateral agreements.

The politics in the United Kingdom will need to settle down before this can happen.

But the commercial and economic case will continue to be there, getting stronger and more compelling with each economic quarter.

Piloting the United Kingdom to such a relationship, and convincing the European Union that it is sustainable to agree it with us, is the great challenge for United Kingdom statecraft over the next decade.

That, and the great challenge of even keeping the United Kingdom together in one union.

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“Is it time to retire the .gb top level domain?”

17th November 2022

Here is (what may be) an amusing question – what should be done, if anything, with the .gb domain?

According to the United Kingdom government, there is no need for the .gb domain, given the pervasiveness of the .uk domain.

And so it seems it can be just got rid of.

But.

Getting rid of .gb may presume or preempt the outcome of possible constitutional changes in the next few years.

In the event there is Irish unification – which is possible in the next few years – then we would no longer be the United Kingdom of Great Britain and Northern Ireland.

And so we may then need .gb.

Though we could perhaps then be the United Kingdom of Great Britain, full stop.

And so still be .uk.

At least in our own minds.

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But if there is Scottish independence, then presumably we will no longer even be Great Britain – and thereby not .gb.

Maybe, without Scotland or Northern Ireland, England and Wales will try to persist in calling themselves either the United Kingdom or Great Britain.

You know, just like those pop bands from the 1970s and 1980s that tour the nostalgia circuit but with only one or two of their original members.

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Perhaps, if Scotland and Northern Ireland do leave the union, England and Wales could adopt the domain .ew ?

 

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Or perhaps not.

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Given it seems that it would not cost anything to get rid of it, and that it appears nobody else could take it, there may be no practical risk in letting .gb go.

But this will be one of many questions about our self-identity if and when Northern Ireland and Scotland (and less probably Wales) leave the union.

And just as the history of these islands to 1922 can be told as a move from separate nations to one union with ever grander names, the history of these islands from now may be told as a sequences of less expansive domains for the London-based government:

.uk > .gb > .ew > .eng > .lon ?

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How the constitution of the United Kingdom has been tested continuously for over seven years

19th October 2022

Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.

Imagine that demonic scheme was as follows:-

First: the test of a supposedly non-binding referendum in what was normally a parliamentary system

Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.

Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.

Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.

Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.

Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.

And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.

I may have missed out some of the tests along the way.

We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.

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The constitution has been through a lot in the last ten years – perhaps too much.

Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.

In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.

The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.

But the constitution needs a rest, on any view.

Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.

And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.

The constitution is not going to get a rest anytime soon.

Brace, brace.

Again.

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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The end of an era? The death of Elizabeth II and the problem of periodisation

19th September 2022

True Historians, of course, do not like periodisation.

The very notion that there can be start-dates and end-dates to periods of study are, for True Historians, anathema, heretical, and blasphemous.

Or worse.

Even dates like 1066, or 1914, or 1945 will, for a True Historian, not be anything other than something which draws us away from understanding continuities.

There is no start-date and end-date which does not mask, for a True Historian, lots of things which carried on as before, and which does not interrupt some existing trend.

But.

For rest of us mere mortals, who will never become True Historians, periodisation is a useful device – as long as not too much reliance is placed on it.

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For a good part of English history, periodisation was simple: it followed the reigns of the monarchs.

Dates likes 1485 and 1603 and 1714 were good dates to start and end a course of study or the content of a text book.

But after 1714 the dates began to slip, and the periods did not match the reigns of monarchs.

Dates like 1815 or 1865 began to be the bookends of courses and textbooks, and for the twentieth century (at least for the United Kingdom) the dates of the world wars were convenient marker dates.

But what of the post-war period?

If 1945 is seen as the start of a period of British history, when should that period end?

1990, with the end of the Cold War and the fall of Thatcher?

1997, with the coming of New Labour?

2001, with 9/11?

2010, with the going of New Labour?

2016, with the Brexit referendum?

2020, with the actual UK departure from the European Union?

Or is there a case to be made for 2022, a year where, in a single week, we had a change of Prime Minister and a change of monarch?

And a year in which Putin and Russia so obviously overreached themselves in Ukraine.

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From a constitutionalist perspective, the start-dates and end-dates are perhaps different.

For a constitutionalist, the key dates may be: 1660 (the restoration); 1688-89 (the revolution); 1707 (the union between England and Scotland); 1714 (the succession of George I); 1745-46 (with the final failure of the disputed succession); 1801 (the union of Great Britain and Ireland); 1828-32 (the collapse of the “ancien regime” with Roman Catholic emancipation and the Great Reform Act); 1867 (the extension of the vote to some working men); 1911 (the defeat of the House of Lords with the Parliament Act); 1918 (votes for women); 1922 (the Irish Free State, effectively ending the United Kingdom of Great Britain and Ireland); and 1936 (the forced abdication).

Each one of these dates, which signal some re-configuration of our constitutional arrangements, would be a good start-date or end-date for a work of modern constitutional history.

(There are other possible dates too – but that paragraph was already long enough.)

But what more recent date would be a marker for our constitutional history?

Some would have said 1973, with our entry into the European Communities; or 2020, with our departure from the Communities’ successor, the European Union.

Others would say the various legislative changes of the first Tony Blair administration, with devolution and the Human Rights Act.

And a strong case can be made for the Good Friday Agreement.

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My own view, for what it is worth, is that – from a constitutionalist perspective – the marker date is yet to come.

The next marker date in our constitutional history will be when there is a border poll in Northern Ireland, especially if there is a vote for unification.

(Or it may be a pro-independence referendum vote in Scotland, if that is sooner.)

For that will bring to an end the constitutional history of the entity which came into its current form in 1922, with the Irish Free State.

And a good historical periodisation is always around a century-long.

(Shh, don’t tell True Historians.)

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If so, then today’s funeral provided a fascinating and highly significant piece of evidence:

This tweet may well be one of the most important things ever tweeted in respect of our constitutional arrangements.

For the Sinn Féin First Minister (Designate) of Northern Ireland to write in such terms means that the sensibilities and concerns of the Unionist community are not only being acknowledged but respected.

And the more the Unionists are made to feel more comfortable, the more likely there will be a united Ireland.

That tweet was huge.

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As this blog has averred before, the great achievement of Elizabeth II was to take a throne which seemed precarious, and to hand it on with more security to her successor.

And so for her monument, you could look around today at the state funeral.

Of course, in a way, with the death of Elizabeth II it can be said in general terms that the twentieth century came to an end.

She was our last major link with a good part of the twentieth century: somebody born the same year as Marilyn Monroe who died in the era of TikTok:

Somebody who served in uniform in World War II, and whose first Prime Minister – Winston Churchill – was born in 1874, lived on so that her last Prime Minister was born a century later, in 1975.

When she died, Elizabeth provided the sort of continuity at which any True Historian will clap and cheer.

She ensured that the end of her reign was not to be a start-date or end-date.

And so our start-dates or end-dates, at least from a constitutionalist perspective, will not include 2022, and so we will have to be different dates instead.

One suspects Elizabeth II would be happy with that.

 

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