In constitutional matters, one definition of a tory is a person who adamantly defends the reforms of previous generations against any further changes.
And so in 1828-1832, the tories defended the constitution they had inherited from 18th-century whigs against any modernisation, and much the same happened in 1909-11. No doubt in the 13th century there were earlier counterparts who tutted at the radical madness of Magna Carta before the great charter became inviolable.
Our modern tory commentator—lower-case t—is Vernon Bogdanor, sometime professor of government at the University of Oxford and author of many leading texts on the constitution of the United Kingdom, and his intellectual mission is to defend the constitution as it was in the early 1990s against any subsequent changes.
Bogdanor’s recent Telegraph article on how to “solve” the issue of Northern Ireland in respect of Brexit is an exercise in turning back constitutional time. The clock must be creaked back before the EU-UK Withdrawal Agreement and its Protocol on Ireland and Northern Ireland, and then creaked back before even the Good Friday Agreement and its important cross-border provisions for the island of Ireland.
For according to Bogdanor, the constitution will only be cohesive if it reverts to how it was in the 1990s. Indeed, the absolute priority must be “the cohesion of the kingdom,” which, one must admit, is certainly a sterling way to conclude an article about the constitution in the 2020s.
The fundamental error made by Bogdanor and others is that they refuse to accept that the Good Friday Agreement is as much a part of the constitutional arrangements of the United Kingdom as Magna Carta or the Bill of Rights. Indeed, given how that instrument has shaped Brexit, the Good Friday Agreement may now be the single most practically important document in the constitution of the United Kingdom.
This is because the Good Friday Agreement provides that one constituent part of the “kingdom” (as Bogdanor calls it) is inherently contested, and this is the opposite of cohesion. One can have a “cohesive” kingdom or take the Good Friday Agreement seriously, but one cannot do both.
The Good Friday Agreement regulates the contested nature of Northern Ireland by making the consent of the population (and not the selfish interests of the United Kingdom) the absolute standard, as well as by placing many institutions and processes on an all-island basis. The agreement also provided for the removal of all then-visible infrastructure on the border, thereby rendering the border invisible.
Given the foundational nature of the Good Friday Agreement then, any Brexit arrangements had to bend when there was a conflict—or even a perceived tension. The London government may well have told itself and others that leaving the European Union single market and customs union was easy, but accommodating such a policy within the framework of the Good Friday Agreement was not going to be easy.
Indeed, there were only two ways it could be done. Former prime minister Theresa May chose one, with a backstop that potentially covered the United Kingdom as a whole. Here the United Kingdom would commit itself to not changing any law and policy that would affect cross-border economic relations in Ireland.
But such a commitment for the whole of the United Kingdom was politically unacceptable, and so the new Prime Minister Boris Johnson chose the only other way so as to “get Brexit done,” with Northern Ireland staying part of the European Union single market and customs arrangements.
Constitutional fogeys may wish to be in denial about this situation. You can understand why they want to pretend that the Good Friday Agreement’s acknowledgement of the contested status of Northern Ireland does not require policy and law to be looked at from an all-island basis as well as from the perspective of the United Kingdom. But they may as well want to repeal the Great Reform Act of 1832 or the Parliament Act 1911. The constitution does not care about your memories.
The basic flaw in Bogdanor’s analysis means one does not even need to address the various unsubstantiated assertions of the piece (on which a capable tutor would pull up a post-essay crisis student). For even if those assertions were correct, the refusal to take the Good Friday Agreement and its implications seriously is an error so significant that the article cannot be taken as a useful contribution to the subject.
No plan, declared somebody or other, survives contact with an enemy. Here, the project by Bogdanor and others to deny that the Good Friday Agreement is a fundamental element of our constitutional arrangements must fall, and this time we don’t even get to smell the grapeshot.
