Category: The Union, Northern Ireland, Scotland, Wales

The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson

9th March 2021

Those who follow Brexit are likely to have strong opinions on the merits of Brexit, and those strong opinions will in turn to influence how each development is approached.

Supporters of Brexit will clap and cheer at certain things, and opponents of Brexit (or of this government’s approach to Brexit) will rage and jeer.

One side will tend to see the government as doing nothing wrong, and the other side will see the government as doing everything wrong.

And such partisanship means any problem is seen either as not existing or as entirely the fault of the government of the United Kingdom.

But not everything is the fault of a bunch of politicians in one place and at one time.

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In a recent post at the London School of Economics blog, Professor Katy Hayward of Queen’s University Belfast has done a short explainer on the Ireland/Northern Ireland Protocol – and it is perhaps one of the best short explainers on Brexit generally.

But the one phrase in that post which stood out for me was this:

‘It is true that – with the best will in the world (which is evident among most businesses in NI) – the new border regime is still far from ready for full implementation.’

So used are many of us at seeing as every failing of Brexit as being directly attributable to the expedient follies of the United Kingdom government that it can sometimes be forgotten that even if we were suddenly to have a sensible and practical government many Brexit problems would still be there.

For this is the very nature of fundamental problems: mere superficialities cannot and do not make any difference.

That is why the problems are, well, fundamental.

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Hayward’s post reminds us of how the Ireland/Northern Ireland protocol is exceptional: it affects an internal boundary of one of the parties; it applies different rules to goods moving in one direction than the other; the applicable rules in one direction are that of the European Union and not the United Kingdom; and that in respect of those applicable rules, it will be the United Kingdom that will be applying them, not the European Union.

As Hayward wisely observes: ‘This entails a great deal of trust on the EU side and a great deal of responsibility on the UK side.’

And these are just the structural problems.

There are then many practical problems, as with any trade agreement – which were, of course, exacerbated by the reckless, last-minute approach to the negotiation and implementation of the protocol.

And.

And to demonstrate the adage that there is nothing in political affairs that the current government of the United Kingdom cannot make worse, there are the clumsy and confrontational antics of the relevant minister David Frost.

In the words of Hayward: 

‘The EU is frustrated at the lack of readiness, compliance and, now, the trustworthiness of the UK.’

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But the value of Hayward’s post is not just in that pay-off line, but in it showing us that even if Frost was not playing to the gallery, the structural and practical problems would still be there – and just as pressing and urgent.

This means that the European Union – and the rest of us – should not get preoccupied with the current political problems – as distinct from the structural and practical problems.

Just as the claps and cheers of the political and media supporters of the government are not enough to get Brexit ‘done’ – a similar but opposite superficial response to such political idiocy is not sufficient as a remedy to the current problems.

Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.

And so Hayward is right to aver that the European Union should seek to avoid getting too caught-up in our current government’s short-term silliness – the ‘moral hazard’ of which I set out in a recent post.

The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as the United Kingdom is out of the European Union and Northern Ireland is part of the United Kingdom.

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The day after the Meghan and Harry interview – how the crown is more precarious than many realise

8th March 2021

A recent post at this blog averred that while the Netflix show The Crown gets a lot of the historical detail wrong it probably gets one wider point right – that there is a constant sense of precariousness felt by the Queen in respect of the monarchy of the United Kingdom.

By ‘precarious’ I do not mean a fear that the whole shabang will suddenly crash down – but instead that there is an ongoing sense of insecurity and instability which may or may not lead to wider insecurities and instabilities, and that this needs management and vigilance.

One suspects that the Queen is highly conscious of the institution’s fundamental changeability – she was ten when her uncle was forced to abdicate by a bunch of politicians; when she was twelve Ireland elected their own president and when she was twenty-two Ireland was explicitly a republic; and as she grew up generally the British empire was converting into a commonwealth, as elsewhere other monarchies declined and fell.

Only with hindsight do we see the period after 1952 as one of continuity and durability in our constitutional history – it probably did not seem that it would necessarily go that way seventy years ago.

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Of course: the monarchy of the United Kingdom is to a certain extent a special case.

Indeed – the very term ‘United Kingdom’ indicates that it is the monarchy that defines the current combined political identity of Great Britain and Northern Ireland.

Few other countries make the very political form of their constitutional arrangements the term by which they are generally known – the obvious other example is the United States.

And as that previous post on this blog also averred, the crown is so deeply embedded in our constitutional arrangements – it is, for example, the conceptual basis of power for each of the executive, the legislature and the judiciary – that to change everything over to a republic scarcely seems worth the time and effort.

(Though, of course, once upon a time, the United Kingdom leaving the European Union also scarcely seemed worth the time and effort – but it happened anyway.)

The crown also has its loud and intimidating defenders in the media – though that very loud intimidation may in turn be seen as an indication of insecurity.

Because of all these things, the institution of the monarchy is not likely to disappear in a political instance.

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But.

The institution of the monarchy is also not bound to stay in its present form either.

In the lifetime of the Queen herself, the monarchy has gone through profound changes – while projecting the comforting image of things staying much the same.

From king of Great Britain and Ireland and emperor of India, and elsewhere, to what we have now – via a forced abdication comparable in constitutional significance to the ejection of James II in 1688-9.

The monarchy has, since the year of the Queen’s birth in 1926, perhaps gone thorough more changes than in any ninety-five year period since 1701.

So to project the last ninety-five years of royal history forward is not to see more stability, but to expect more fundamental change – including maybe the departure of Northern Ireland and Scotland from the United Kingdom.

(Though no doubt the ‘United Kingdom’ will keep calling itself that, just as some gongs are still named the order of the British empire.)

In essence: the present – and, for us, familiar – arrangements of the monarchy of the United Kingdom are not fixed and eternal.

They have profoundly changed in the lifetime of the current monarch – and they can profoundly change further.

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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.

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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.

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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:

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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:

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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. 

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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.)

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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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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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.

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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Four examples of Prime Ministerial power – how Boris Johnson in fact ‘did everything he could’ for there to be a trade barrier down the Irish Sea

4th February 2021

You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.

For my part, the best and most insightful depictions of Johnson as a politician are this piece by Marina Hyde and this by Rafael Behr.

This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.

Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.

The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.

But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.

For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.

*

Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.

But the Irish barrier question shows the ways in which a prime minister can exercise power.

*

First, a prime minister can change and set government policy.

And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.

Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.

And Johnson did.

*

Second, a prime minister can enter into international agreements.

In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.

So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.

And again, this was something he could only have done as prime minister.

*

Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.

Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.

But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.

And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.

The (then) ‘oven-ready’ deal was mandated by the 2019 general election.

So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).

*

And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.

So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…

…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.

(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).

*

That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.

The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.

There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.

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What is Article 16 of the Northern Irish Protocol – and what on Earth was the European Commission thinking? (Includes a copy of the now deleted proposed regulation.)

30th January 20211

After four years or so of chronicling the various self-inflicted unforced errors of the United Kingdom, and the better decisions at each stage of Brexit by the European Union, it is kind of refreshing to see the European Commission commit a pratfall.

Of course, this is a grave situation, and we should be terribly earnest, but still: it is salutary to be reminded that no entity is perfect.

That said, some partisans – this time for the European Union – will maintain that there was no error and that the European Commission was entitled yesterday to invoke article 16 of the Irish protocol.

Unfortunately for such partisans, the European Commission did a quick reverse-ermine last night to un-invoke article 16.

This was quite the spectacle for onlookers at the end of what was, on any view, not a good week for the European Commission.

But what is article 16?

And what on Earth was the European Commission thinking?

And how can the European Commission explain (away) recital 17 of the (now deleted) proposed regulation in question?

*

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the plebeian ‘clause’.

And indeed articles tend to more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments.

Article 16 is within the Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

The article provides in its entirety:

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

And – it then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

And – ‘priority’ shall be given to what measures that cause the least disturbance.

And – in paragraph 2, any imbalances caused by the uses of the safeguards can be addressed.

And – in paragraph 3, there is a further process to be followed, as set out in an annex.

Annex 7 then in turn supplements the substantive limits to the use of Article 16 safeguards with procedural protections:

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

In summary: invoking article 16 is not to be done casually or by mere oversight.

It is not a red button that can be pressed by accident.

There are substantive and procedural conditions to be fulfilled before it can be invoked.

And the European Commission will know this – for two reasons.

First, article 16 is a provision which the European Union recently agreed.

And second, the European Union is a creature of law itself and is thereby bound by the letter of the law in what it can and cannot do.

The essence of the European Union is process, or it is nothing.

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Given the careful substantive and procedural protections of article 16 it came as a bit of a surprise when reports emerged yesterday that the European Commission was invoking the provision – and was doing so in a highly charged political situation.

As the Guardian reported:

Even the archbishop of Canterbury.

Imagine that.

*

Although the invocation of article 16 was widely reported by major news sites – and was not denied by the commission – there appears to have been no formal announcement by the commission.

Indeed, there appears to be no ‘on the record’ confirmation that it was invoked.

But.

What happened is that a proposed European Union regulation appears to have been published.

The regulation (in draft form) appears to be at the internet archive.

And, while I was writing this post, a reliable source has provided me with this ‘final’ copy that was deftly downloaded before the European Commission deleted the regulation.

tradoc_159398 (1)

*

Recital 16 – a formal recital! – of this regulation has the European Commission asserting that the quantitive restriction on exports was ‘justified’ under article 16, and that the justification was because it was ‘in order to avert serious societal difficulties due to a lack of supply threatening to disturb the orderly implementation of the vaccination campaigns in the Member States’.

This is significant, as the recital indicates that the justification exercise has already been conducted – that the recital describes a thing that has already taken place.

But asserting the safeguard is justified is not the same as showing that the substantive requirements of article 16 have been met: was it ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular situation, and was ‘priority’ given to what measures that cause the least disturbance?

Was the measure even within the scope of the Irish protocol in the first place?

And was the annex 7 procedure followed – or even considered?

What we do know, however, is that formal recitals to legal instruments do not come about by accident – even when those regulations are in draft form, let alone ‘final’ form.

Somebody somewhere in the European Commission had to have made a decision for that recital to be part of the regulation.

And that can be most plausibly explained by someone at the European Commission having decided to invoke article 16.

*

The invocation did not last long.

The European Commission issued a late-night press release stating that it was not triggering article 16:

The key sentence is unqualified (and is curiously in the present tense): ‘The Commission is not triggering the safeguard clause.’

*

The known facts point to article 16 having been triggered – that is the most plausible explantation for recital 16 to the proposed regulation – but also point to the commission not having followed annex 7.

In the immediate political context of concerns about ‘vaccine nationalism’ and in the broader context of the border in Ireland after Brexit, it was an unwise move by the European commission.

(Though, as averred at the head of this post, it was also good to see that the European Union can blunder as horribly as the United Kingdom.)

Perhaps the European Commission now hopes that this mistake will fade and disappear.

Perhaps both sides will now take more care before even considering article 16 safeguards.

Or perhaps all this is, in effect, a dress rehearsal for the political crisis when either side does go through with invoking article 16.

Brace, brace.

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Why it is possible to be neutral about Brexit in principle – and how this may even be a good thing

25th January 2021

Yesterday the question came up on Twitter as to whether it was actually possible to be neutral about Brexit.

The contention is: surely the obvious problems of the departure of the United Kingdom from the European Union are such that nobody with any knowledge of the subject could be neutral on the topic.

One could be objective (or purport to be objective) – this contention goes – but nobody could any longer be ‘neutral’.

There is some attractive force in this contention – and it is certainly true that nobody could be indifferent as to how this calamitous Brexit has come about and is proceeding.

But.

As someone who is (or purports to be) neutral on Brexit in principle it seems to fall to me to explain not only why one can be neutral on Brexit in principle but also why it may be a healthy intellectual position that should be shared more widely.

Note here the words ‘in principle’ for they are doing some heavy lifting.

What is the principle?

The principle is straightforward, and it was stated in the referendum question itself:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The two answers to this question were:

“Remain a member of the European Union”

“Leave the European Union”

The principle is about whether the United Kingdom is a member state or not a member state of the European Union.

And so this is the ‘Brexit in principle’ that I am neutral about.

*

The ultimate question of Brexit is that of formal membership of the European Union.

That is what the referendum question was about.

But this question of formal membership tells you nothing directly about whether a country is part of the Single Market: some countries participate in the Single Market without being members of the European Union.

And the question of formal membership also tells you nothing directly about whether a country is part of a customs union with the European Union.

It is perfectly conceivable for the United Kingdom to be in an association agreement with the European Union, participating in the Single Market and the customs union, and with shared institutions and mechanisms, without being a formal member.

And depending what happens with the current trade and cooperation agreement over the next five or ten years and so on, that is perhaps what the United Kingdom will end up with.

It may well be that such an association agreement will prove to be more enduring and sustainable than the forty-seven years the United Kingdom lasted as a member of the European Economic Community and the European Union.

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Against this view is a powerful argument based on convenience: if the United Kingdom wants to be part of the Single Market and a customs union then it may as well be part of the European Union, where it will also have the right to influence policies and decisions.

There is a lot to be said for this pragmatic argument.

But that is what it is: an argument from pragmatism, and not from principle.

Indeed, after forty-seven years as a member state, there is certainly a compelling argument that any Brexit was always going to be far more trouble than it was worth.

And that is partly why I have been so critical about Brexit: a deep and lingering question of, well, what is the point?

This botched Brexit in practice has been an expensive and time-consuming exercise in placing the United Kingdom in a worse trading position that it was to begin with.

And so yes, in practice, any Brexit born in the political conditions of 2016 was likely to not go well – and indeed the one we had turned out quite badly.

*

But.

Being able to show how something has gone badly in practice tells you nothing directly about the principle.

And here I admit I am indifferent to all political unions, and not just the European Union: they come and go, rise and fall.

The United Kingdom itself, in its current form of Great Britain and six counties in the north of Ireland, is not much older than the European Coal and Steel Community, the supranational forerunner of the European Union (and on this point, see this post here).

And Great Britain itself is an improvised political union born in the particular circumstances of the early 1700s on this wet and windy island in the north Atlantic, and which has no absolute and eternal purchase.

Political unions come and go.

*

Whether the United Kingdom should now seek to (re-)join the European Union it formally left in 2020 is now a question which, on any view, is of keen political controversy.

Some will say that in no circumstances the United Kingdom should (re-)join: it is and should always be a (supposedly) ‘sovereign’ nation.

And others will say that, as a matter of principle, the United Kingdom should be part of the European Union both because of what the European Union stands for and because of its substantial benefits.

But there will be others, especially as the hectic political years of 2016-21 recede from view, who will not approach the debate from either of these absolute positions.

They will instead want to work forwards from questions of what works and what are the benefits, rather than backwards from an absolute commitment to ‘sovereignty’ or to membership of the European Union.

And this is where neutrality – as well as objectivity – in commentary is a good thing: nothing on this blog, or my stuff elsewhere, has the preconceived notion of the United Kingdom necessarily staying outside or quickly (re-)joining the European Union.

Of course, partisans for and against the European Union can be detached and objective – both a remain and a leave commentator, if intellectually honest, will recognise the same predicaments.

Not all partisans are hyper-partisans.

But it is also possible – and I aver a good thing – for a commentator on Brexit to not be committed to having the United Kingdom forever either in the column of formal members of the European Union or on the list of countries with other relationships with the European Union.

(And indeed to also not be committed to the United Kingdom as a political union.)

The question is what works in practice and is sustainable.

There are many things not to be neutral about – the absolute importance of universal human rights and the sheer horror of populist authoritarian nationalism – and it may be that certain political configurations are better placed, in practice, in dealing with these things.

There are certainly strong pragmatic arguments for the United Kingdom to be a member of all sorts of international associations.

But on the question of whether the United Kingdom is (again) a member-state of the European Union or has some other (perhaps more sustainable) relationship is an ultimate question on which being indifferent is not necessarily a bad thing.

Indeed, given the uncertainties and challenges ahead for the United Kingdom after Brexit, neutrality on this ultimate question is perhaps better than the alternative of commentating from a preferred end-position.

And the debate about Brexit and its aftermath may even be healthier.  

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