This week Lord Frost will provide an outline of steps the Government will take to remedy the unworkable nature of the violence-rewarding, Union-dismantling Protocol which is endangering peace in Northern Ireland and operates without the consent of a solitary elected unionist representative at any level from local council to the House of Lords.
There are many unacceptable and abominable out workings of the Protocol, the most visible of which is the partitioning of the United Kingdom via the imposition of a border in the Irish Sea. The fundamental ethos underpinning this unacceptable arrangement is that nationalist threats of violence necessitate that there can be no land border, so instead unionism must bear the burden and tolerate a border in the Irish Sea.
Article 5 (2) creates a presumption that goods moving from GB to NI are ‘at risk’ of entering the EU single market. Therefore the default position is that goods will be subject to checks (internally within the UK) unless the burden of showing they are not at risk of moving into the EU single market is discharged. This is the beating heart of the Irish Sea border. As such, to put a dagger into the heart of the Protocol, the most obvious initial step would be to not only reverse this presumption within Article 5 (2), but to go further and ensure that only goods (rather than those which may be at risk) which it is actually shown are moving into the EU single market, are subject to checks.
This proposal could be put to the EU- in line with the commitments set out within the Protocol itself to uphold the Belfast Agreement, protect peace and the UK internal market- as proposed new arrangements to supersede the Protocol. Such an agreement is provided for within Article 13 (8) of the Protocol.
Given the United Kingdom would at this point have taken reasonable steps to provide a solution to the serious societal and economic problems flowing from the Protocol (by bringing forward suggested new arrangements within the ambit of Article 13 (8) of the Protocol) there would be an irresistible case for triggering Article 16 to unilaterally address the issue if the EU did not agree to the proposed new arrangements within the ambit of Article 13 (8).
It is notable that Lord Frost has more recently also been talking more about cross community consent, and the reality that the Government underestimated the extent of resistance to the Protocol from the unionist community.
This would appear to be on the trajectory of correcting the consent mechanism within the Protocol, which far from respecting the Belfast Agreement and protecting peace, in fact shreds Strand One (5) (d) and is endangering peace.
Article 18 (2) of the Protocol states that the consent mechanism must be “in a manner consistent with the 1998 Agreement”. However, this commitment is then nullified by Article 18 (5) which overrides cross-community consent and ensures the primary consent is one of a majority of the Assembly. The only nod to cross community consent is that if by chance there is both cross community and a straight majority, then the Protocol endures for eight years rather than four.
It is an elementary proposition that you do not act in a manner consistent with the 1998 Agreement, by nullifying one of its key planks set out within Strand One (5) (d).
A correction of Article 18 (5) of the Protocol, and a legislative amendment of s56A and by extension Schedule 6A of the 1998 Act could correct the consent mechanism which is designed at present to nullify unionism.
The new arrangements (reversing the presumption of risk in Article 5 (2)) would therefore necessarily be required to be placed until the consent vote, given they derive from a necessity- in line with the agreed aims of both the UK and EU- to protect peace and the Belfast Agreement. At the point of such a vote, unionism could veto the Protocol which would require a renegotiation.
That of course still does not deal with the implied repeal of the Act of Union and the outworking of NI being subject to EU laws which will not be imposed on the rest of the United Kingdom. This places NI on a different footing in a treaty and therefore offends both the first and the second limb of Article 6 of the Act of Union.
It is trite to point out, and perhaps this has been underdiscussed, but an implied repeal of Article 6 of the Act of Union does not only apply to NI; the repeal is of the provision within the foundational constitutional statute itself, not merely its operation in only one part of the United Kingdom. As such, this is a fundamental altering of not only Northern Ireland’s place within the Union, but of the Union itself.
The decision of Colton J is being appealed to the Court of Appeal, and almost inevitably thereafter the Supreme Court. The decision, in my view, is fatally flawed. Despite a competent effort to politically assassinate the Union, the fingerprints are visible, and the errors are hidden in plain sight within the judgement. It would seem difficult to envisage how the Supreme Court (even if the Court of Appeal finds a way to save Colton J’s political judgement) could skate around such patently erroneous findings.
The Government could obviously reverse Colton J by statutory provision and render any appeal (on this point anyway) academic. The simplest course of action would be to amend S7A of the 2018 Act to insert clear wording- in line with the clear comments of the Prime Minister in the House of Commons- that the Act of Union prevails.
The Protocol is in of itself the problem, therefore even what appears to the commitment to put a dagger into its heart is not ultimately enough. It must be killed off in its entirety. If this requires it to be incrementally dismembered, then so be it, but whatever course of action the Government takes must recognise the fundamental requirement to restore, and thereafter strengthen, Northern Ireland’s place within the United Kingdom.
Last week the DUP, in perhaps their most cogent and impressive approach to the Protocol yet, set out seven key tests. This was accompanied by a detailed explainer of how these seven tests could be linked back to explicit promises the Government had made, and relevant legal requirements. It is no surprise that this work coincides with the return of Richard Bullick as the DUP’s key special advisor. Whilst perhaps he is largely unknown outside of the political bubble, Mr Bullick- a barrister by trade- sits alongside Jim Allister QC as the finest legal brain unionism has had in decades. This reappointment will undoubtedly signal a significant moment for unionism.
The whole ethos of the Protocol is to create a diversion of trade and thus colonise Northern Ireland within an economic United Ireland. And, of course, following the European Union’s own model, it is but a small step from economic union to political union. It is no wonder nationalism cling desperately to the Protocol imposed as a reward for their threats of violence.
Notwithstanding the Protocol itself, so too must section 1 (1) of the Northern Ireland Act 1998 be confronted. If, as the ruling of Colton J suggests, those protections merely guard the symbolism rather than the substance of the Union, then they are no protections at all. If, without offending section 1 (1) of the 1998 Act, you can change everything but the last thing, then in the words of arguably the finest constitutional lawyer of his generation, John Larkin QC, the purported protections for unionism really amount to little more than a “deceptive snare”.
As will be apparent from this article, unionism faces many fundamental challenges. I hope that this week we will hear from Lord Frost a plan that will fundamentally damage the Protocol. However, whatever we hear- whether it is substantive change or minor change- it is change which has come about thanks to the work of grassroots unionism and loyalism who via protest groups, coalitions and campaigning have collectively united behind the fundamental shared message that together we are stronger, with a clear message that after twenty-three years of a one sided process, enough is enough.
If, as nationalism, the Irish Government and the EU would tell us, that the Protocol is the price of peace, then it is a price too high.
Jamie Bryson is a loyalist activist who works in law and public relations. He is author of Brexit Betrayed and a series of legal papers analysing the constitutional law aspects of the Northern Ireland Protocol.