It has been reported in the press for some weeks now that President Biden has indicated he would like to make a State visit to the UK to coincide with the twenty fifth anniversary of the signing of the Good Friday Agreement on 10th April next year. This visit, however, is apparently dependent upon resolution of the difficulties surrounding the Northern Ireland Protocol. No doubt partly with this in mind the President is about to appoint (again according to reports over the weekend) a Special Envoy to Northern Ireland.
It is only possible to understand the contribution that America is uniquely well placed to make regarding the Northern Ireland Protocol if one first understands something of her history which in turn can only be understood through a prior understanding of something of our own.
The period during which the commitment to liberty found its most seminal expression on these islands was arguably the seventeenth century, between 1630 and 1688 as a response to monarchs seeking to seize more power. Prior to this period our constitutional history - certainly that of England - had long testified to a strong commitment to the idea that the King ruled, not by himself, but with his people. The centralisation of state power during the early modern era (the mid-1500s to 1630s), however, coincided with the growing influence of the Divine Right of Kings philosophy. In this context, King Charles I felt that the time had come to break away from past constraints and during the 1630s he embarked on a period that historians have called ‘the Personal Rule’, when for 11 years he did not summon Parliament but ruled by himself.
The difficulties with the Personal Rule reached a critical juncture when Charles introduced - entirely on his own authority - a new tax known as Ship Money. This provoked a response from the one-time Member of Parliament for Buckinghamshire, John Hampden, who refused to pay, not because he was against the tax but because it was sought unconstitutionally, without Parliament. Although the court ruled against Hampden, the fact that judges were divided, splitting 5 to 7, and thus came very close to vindicating him, was a disaster for Charles who was eventually forced to summon a Parliament to grant taxation for a war against Scotland – of which he was also King. When the King entered the House of Commons with soldiers in January 1642 to arrest Hampden and 4 other MPs, his conduct was felt to amount to the crossing of a line from which there could be no return and led within months to the Civil War in which Hampden served as a colonel and was killed the following year. The impact of the subsequent years of strife, culminating in the Glorious Revolution in 1688, was to engrain deeply into Britain’s constitutional DNA the conviction that Parliament, the representative body of the nation, was the ultimate authority in law making and the ultimate custodian of our liberties.
Jump forward to the eighteenth century, however, and Britain was poised to forget the lessons of the past. In 1765 the Prime Minister, George Grenville, (ironically like John Hampden before him, a Member of Parliament for Buckinghamshire) persuaded the British Parliament, in which the American colonies were not represented, to pass the Stamp Act, imposing taxation on America. The colonists were livid as were a significant minority of British MPs, including the Irishman who was to become the founder of modern Conservatism, Edmund Burke. If ever there was a case of double standards this was surely it! In this context the founding fathers of the United States readily referred back to the heroic stand taken by John Hampden.
Benjamin Franklin, for example, wrote: ‘You will tell me that we forfeited our estates by our refusal to pay the taxes your nation would have imposed on us without the consent of colonial parliaments. Have you then forgot the incontestable principle which was the foundation of Hampden’s glorious lawsuit with Charles the First, that ‘what an English King has no right to demand, an English subject has a right to refuse.’
Referring to the formation of the USA, historian Maija Jansson observes:
‘…The principle of no taxation without representation, part of the bedrock of American national consciousness, had its roots in the shared memory of John Hampden’s refusal to pay ship money.’
In this context the Americans are very well placed to engage with the Northern Ireland Protocol which makes provision for Northern Ireland to be subject to laws in some 300 different areas, including taxation, that are made for it by an external, colonial power, the European Union, of which it is not a part and in which it has no representation. It thus foists on Northern Ireland the same grievance that the Stamp Act foisted on America, but, covering some 300 different areas of law, the Protocol is clearly worse. If President Biden is to learn from his own history, and from ours, what he should now do is call on the EU to end its neo-colonial practice of imposing laws on the people of the United Kingdom who live in Northern Ireland, given that the United Kingdom is no longer represented in the European Parliament, or other EU institutions, having left the EU. This point is greatly compounded if one’s purpose is to protect the Belfast Good Friday Agreement, which undertakes to uphold the right of the people of Northern Ireland 'to pursue democratically national and political aspirations', a right the Protocol seeks to take from them in relation to some 300 areas of law-making.
Of course, to the extent that these lessons from history are of crucial importance for the United States, they are even more important for the UK Government which it is now reported is putting the Protocol Bill on ice and wants a deal negotiated with the EU by the end of January. Having endured the painful experience of betraying one of the most seminal principles of our constitution in 1765 (this did not end well), albeit for the very good fiscal reasons advanced by Grenville, we cannot afford to countenance any deal that might cause us to repeat this mistake.
Mindful of all this, on Sunday I responded to the weekend news about US Special Envoys and deals with the EU, by visiting the Hampden memorial. It is at times like these that, rather than being enlisted by the pressures of the moment, we must pause to reflect on what is important across the sweep of history and to seek to remain faithful to our constitutional identity and calling. Located on the edge of the Buckinghamshire field on which our celebrated subject (whose statue stands at the entrance to Central Lobby in the Palace of Westminster) refused to pay the King’s tax, the memorial is a place loaded with constitutional significance.
I very much hope that mindful of its importance in the development of both UK and US constitutionalism, President Biden will find time to visit when he is next in the UK. Even more importantly, though, I would urge the Prime Minister to visit. In truth, he really has no excuse. Perhaps the Lees, who decided that British Prime Ministers should have a country seat, and gifted the nation a residence for that purpose, felt it was important that First Lords of the Treasury should never lose sight of the basic constitutional principle set out in Hampden’s legacy because they selected Chequers, located only 3 miles from the Hampden memorial. It would make the perfect Christmas walk for the Prime Minister!