Category: International Agreements

Trident and Scottish independence

2nd September 2021

Imagine Whitehall obsessing about somehow salvaging a post-imperial policy delusion costing billions – which we cannot afford and probably serves no modern purpose.

But enough about Brexit.

This is a post about Trident.

In the event of an independent Scotland, what would happen with Trident?

(And for those who think Scottish independence ‘would never happen’, remember other things that would never happen, until they did – like Brexit.)

The Financial Times has published some information on what the current United Kingdom government sees as the options.

https://twitter.com/SebastianEPayne/status/1433151630157942785

https://twitter.com/SebastianEPayne/status/1433153845757104135

https://twitter.com/SebastianEPayne/status/1433154687482703873

https://twitter.com/SebastianEPayne/status/1433155450850136065

https://twitter.com/SebastianEPayne/status/1433163642665684994

 

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Dramatic stuff.

But from a constitutional perspective – rather than a defence policy perspective – the notion of the rump British state having some sort of ‘pocket’ in an independent country is a curious one.

Of course there are examples such as the Irish ports mentioned in the thread – or the two bases in Cyprus.

Such naval and related arrangements are not novel.

But.

There seems a difference in principle as well as scale in the notion that a base for nuclear warfare should in another independent country, where that country will be assuming the risk of being targeted by nuclear weapons in return.

That would be quite a significant thing to have within your polity over which you would not have any direct political control.

And given the propensity of post-Brexit politicians to overestimate their position on the world stage, one would not really want to take on the risk of the (literal and metaphorical) fall-out of nationalistic bombastic posturing.

That said: perhaps leasing the site to the London government during the necessary transition period could provide the very financial injection that would make independence more viable than otherwise.

And so it could be a boon for Scottish independence – as well as a predicament.

But on any view: what to do with an unwelcome nuclear warfare base in a newly independent state will raise constitutional and political issues – at least in the short-term.

At least Whitehall is thinking through these issues in advance.

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What the CE/UKCA and the GDPR issues tell us about the pointlessness of Brexit

  28th August 2021

The strongest argument for Brexit, if not the only one, was that it would enable the United Kingdom to have laws and policies regardless of our obligations under the treaties of the European Union.

Many – including you – will probably not think of that as much of an argument – and, indeed, it is not much of an argument.

But at least it is an argument which is internally coherent: as a member of the European Union the United Kingdom was subject to its European Union treaty obligations, and as a non-member, we are not.

To get from [x] to [y] could only be done by the means of Brexit.

The other arguments do not even make sense as a matter of internal logic.

For example, the argument from sovereignty did not make sense: the United Kingdom had sovereignty all along, else it would not have been able to make an Article 50 notification and repeal the European Communities Act.

And the argument of practicality also does not make sense, for even though we are no longer subject to its European Union treaty obligations, it appears that there is not any advantage to having this new freedom.

For example: we are now free of the CE regulatory regime – but our businesses need for us to continue.

And, as this blog recently averred, there is no good reason for the United Kingdom to diverge from the European Union data protection regimes – and many good reasons for us not to do so.

So the United Kingdom did not need to do Brexit to regain sovereignty (as we already had it and never lost it) nor did United Kingdom need to do Brexit to make any substantial policy changes, as we do not seem to need to change policies.

As is often said, the post-Brexit United Kingdom really is the dog that caught the bus.

Yes: the United Kingdom can now have laws and policies regardless of obligations under the treaties of the European Union.

But there does not seem much point.

What a pointless thing to have done.

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The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

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Brexit.

COVID-19.

Afghanistan.

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In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

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A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

**

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The thin threads of power – politics and policy in an age of impotence

17th August 2021

When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.

The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.

The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.

The film gave me a life-long fascination about the nature of practical political authority and control.

Here on YouTube some helpful person has put together the bunker scenes from the film:

If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.

And this matches the collapsing political authority of those in the bunker.

To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.

The political authority of those in the bunker, like the communications, is cut off.

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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.

Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.

Those ‘in control’ may as well be playing with some grand political simulator.

And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.

To answer the question: just what happens when the telephone rings out but it is not answered?

I suspect that this not the intention of the film makers, or the teachers.

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I mention this because of the impotence many in the West now feel about the fall of Kabul.

There is a general sense that something should have been done.

Here is our current foreign secretary:

The phrase “no one saw this coming” could be the motto of the United Kingdom government since at least 2016.

And here is Susie Dent, the subtle genius who no doubt will be regarded by future historians as the best political commentator of our age:

All true: but even if we had the foresight, what could have been done?

Of course: the execution of the final departures could have been better.

But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.

And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.

Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:

‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.

‘The UK’s Afghanistan experience demonstrates none of this.

‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.

‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’

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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.

The sense that all that needs to be done when something must be done is for politicians to want it to be done.

The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.

We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.

But political power hangs on, well, threads.

And those threads snap easily, if they exist at all.

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Whatever happened to ‘regime change’?

16th August 2021

Once upon a time geopolitics seemed so much easier.

As Christopher Hitchens commented back in 2001, after 9/11:

‘The Taliban will soon be history. Al-Qaida will take longer. There will be other mutants to fight. But if, as the peaceniks like to moan, more Bin Ladens will spring up to take his place, I can offer this assurance: should that be the case, there are many many more who will also spring up to kill him all over again.’

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I was one of those who nodded-along with Hitchens at the time, but I quickly realised the reality of ‘regime change’ did not correspond to what was said in sterling newspaper columns and comment pieces.

And by the time of the Iraq invasion (with which I did not nod-along) it was plain that no actual thought was going into what happened next in any of these adventures.

Now, twenty years after the invasion of Afghanistan, the west are retreating in circumstances which show that there was never any practical, sustainable plan for ‘regime change’.

Indeed, instead of a changed regime in Afghanistan, we have a regime resumed.

And the full resumption only took a day, after some twenty years of occupation.

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Back in 2017, at the Financial Times, I put the calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

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I remember as a United Kingdom government lawyer around 2003/4 being asked to help on a commercial procurement matter involving the Coalition Provisional Authority in Iraq.

I did not have much idea what I was doing, though I did my best – and it was soon obvious that nobody at the Coalition Provisional Authority knew what they were doing.

I remember thinking at the time that it is one thing to clap and cheer at ‘regime change’ but for it to happen in reality was quite different.

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This is not to argue absolutely against military interventions – either ‘liberal’ or otherwise.

What it is an argument against, however, is the notion that ‘regime changes’ are easy, or even effective.

Interventions are not political exorcisms, where the demons are expelled forever.

Instead, the notion of ‘regime change’ is a form of magical thinking.

And it always was.

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No, Brexit cannot be ‘annulled’ or ‘cancelled’

14th August 2021

There are a couple of tweets on Twitter that are being heavily retweeted and liked saying that because of some court case or another, Brexit can be ‘annulled’ or ‘cancelled’.

These tweets are false – and those earnestly retweeting and liking the tweets are being given false hope.

The tweets are by knaves – accounts that either do or should know better.

And those knaves are taking those opposed to Brexit for fools.

There is a fancy that it is only the likes of Boris Johnson and Dominic Cummings and Nigel Farage and other Brexiters lie about Brexit.

But lies – and liars – are on the Remain side too.

And one can hardly complain about ‘fake news’ and ‘post-truth’ when one is also happily promoting social media posts that say false things that you want to believe are true.

That is not the opposite of Trump-like politics – but its application.

Brexit is a historical and legal fact.

There is no mechanism by which any court anywhere could order Brexit to be undone.

There is no court order that can undo Brexit.

There is no court of competent jurisdiction that can undo Brexit.

The only way the United Kingdom can (re)join the European Union is by the process under Article 49 (the one that comes before Article 50).

And such an application, if it is ever made, will not be quick – not least that the European Union would want to see a settled political consensus in the United Kingdom in favour of (re)joining.

It will be a slow slog – and may not even be in the lifetime of many reading this post.

Fantasy, of course, is more appealing for a supporter of the United Kingdom than this dull, distant prospect.

But that is all that these knavish tweets and tweeters are offering: fantasy.

Not all lies are written on the side of a big red bus.

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The story of Jack and Harry – what the respective Grealish and Kane contract situations tell us about all legal agreements, including the Brexit deal

6th August 2021

On the face of it, this blogpost may be about football – but the point it is seeking to advance is about all legal agreements, including the Brexit deal.

So if you are not a football fan, bear with the context, for the post is really about a more important general principle.

By way of background, there have been two football transfer stories in England in the last week.

One is the completed record £100 million transfer of Jack Grealish from Aston Villa (the club I happen to support) to a Manchester club.

The other is the potential and, as yet, frustrated transfer of England captain Harry Kane from a London club to that same Manchester club.

(I hope the supporters of those other clubs do not mind my gentle teasing – Aston Villa fans have not had a great few years, and we have to take pleasures as we can.)

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The story of Jack

The reason why the transfer of Jack took place is that he (with his agent and his lawyers) negotiated a particular provision in his contract with Aston Villa.

This provision appears to have been a clause with the following form:

In the event that

(a) there is a transfer bid of £100 million is received from

(b) a club taking part in the European champions league and

(c) Aston Villa is not taking part in the European champions league,

then a release option can be triggered by the player.

This provision appears to have been inserted in the new contract that the player negotiated and signed with the club last year.

It seems that Aston Villa did not want to sell Jack at less than £100 million nor in circumstances that would adversely affect the club’s chances in the European champions league in the happy (and then unlikely) event the club qualified for the competition.

The £100 million amount selected was a record fee for a transfer between domestic clubs and would have (then) been regarded as prohibitively high, but it also was a sincere and fair estimate of the value to the club of the club’s captain, who they perceived to a be a world-class footballer.

On the other hand, Jack did not want any old transfer from Aston Villa, but he wanted to have the real option of joining a club where he could play alongside and against players of a similar standard to himself in European champions league football.

Both parties agreed that this would not and should not happen if Aston Villa itself was playing in the European champions league.

So both parties agreed that in the foreseeable circumstances of interest from a club taking part in the European champions league, what the allocation of risk would then be, and they agreed a practical provision accordingly.

And when interest came from such a club, the parties then know what their interests and positions would be.

Wise Jack.

Wise Aston Villa.

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The story of Harry

Harry also wants to join the same Manchester club.

But it appears Harry and his advisers did not negotiate such a provision in his contract with his London club, who are not taking part in the European champions league.

This was even though it was foreseeable that clubs taking part in the European champions league would want to purchase the England captain and leading goal scorer.

And because there is no such provision to trigger, Harry is reduced to refusing to turn up for training.

It appears he is seeking to use extra-contractual means to end his contract with present club, so as to force through a desired transfer.

This tactic may or may not work, but it is certainly unseemly.

A better approach would have been for him (and his advisers) and the London club to have sat down and discussed the possibility of such a transfer.

The London club, like Aston Villa, could have stipulated onerous conditions to protect their legitimate interests which would have to be met, and Harry could have accepted these conditions in return for the right to trigger the option of a release if those conditions were met.

Of course, it take takes two parties to agree a contract – and it may be that one (or both) of the parties could have refused such a provision outright.

But such a lack of realism has only resulted in the current messy situation, and stubbornness would have achieved little.

It would have been better for both parties if such a realistic option had been provided for.

Instead Harry is at home upset and frustrated.

He appears to have believed there was a ‘gentleman’s agreement’ that would bind the London club, rather than the club being bound by the actual wording of the contract.

Unfortunate Harry.

Unfortunate London club.

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The story of Brexit

With Brexit, the United Kingdom appears to have adopted the Harry Kane approach to contracts – of signing some agreement and then hoping the agreement does not mean what it says.

And so the United Kingdom government is, in effect, also sulking in its plush London home, hoping to force the European Union to move from what was actually agreed.

A more sensible United Kingdom government would – at the time the agreement was negotiated – have dealt with foreseeable risks by allocating the risks as between the parties.

The United Kingdom should have been more like Jack.

But instead it has been like Harry.

Unfortunate United Kingdom government.

Unfortunate us.

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

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Why the government did not ‘override’ an Act of Parliament over overseas aid – the concerning thing is that the government acted in accordance with the law

14th July 2021

Yesterday there was this stunning tweet from Lord Falconer, the experienced QC and a former lord chancellor – and now a Labour spokesperson.

There are many things to be said about the government’s decision on this – for example there is what former prime minister John Major said:

There is nothing positive to say about this illiberal and misconceived decision, and it should be opposed by every sensible person.

But what Falconer said appears incorrect – either in the head tweet or taking the thread as a whole.

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The correct position, as has been previously set out on this blog, is that the obligation under the International Development (Official Development Assistance Target) Act 2015 is not an absolute obligation.

The act provides for a statutory target of 0.7% of gross national income is sent on overseas aid – but this has no legal force and is certainly not absolute.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Section 1(1) is subject to wide wide exceptions in section 2(3):

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

In view of these exceptions, the section 1 cannot be called ‘absolute’.

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To take advantage of an exception, the government has to lay a statement before parliament.

This is set out in section 2 of the act, which – of course – as much a part of the legislation as section 1.

And that is what the government did yesterday – the statement is here, and it states:

‘The government will continue to act compatibly with the International Development (Official Development Assistance Target) Act 2015, under which accountability is to Parliament. The Secretary of State will lay a statement in Parliament in accordance with section 2 of the Act in relation to each calendar year in which the government does not spend 0.7% GNI on ODA.’

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The legal problem with the international aid cut is not directly with what the government did – for they have complied with the act.

The problem is with the sloppy drafting of the legislation, which makes the target obligation nothing more than a nice-to-have.

The public understanding of law is a valuable but fragile thing and such misleading comments undermine the public understanding of law.

The correct response to sloppy legislation is not sloppy commentary.

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As a post script, even the section 2 exceptions do not really matter as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

What a useless piece of legislation.

**

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

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

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