A seismic moment in the Court of Appeal- pro Agreement unionism faces its defining moment
By Jamie Bryson
If I begin with an analogy: In 1998 you encourage your family to invest all they have in a plot of land. The basis for your encouragement is that this land has a solid foundation, that it will provide a strong and stable basis for your family to make a home on for generations to come.
However, twenty-four years later it transpires that in fact the land did not have solid foundations at all, but rather beyond the superficial layer the land is fatally contaminated and thus is in turn weakening and corroding the very structure of that which has been built upon it, the fruit of the family’s lifetime investment.
Would it be intellectually or morally credible to go back to another generation of your family and encourage them to also invest all they have in this land, knowing that twenty-four years previous you had been deceived, and had thus in turn inadvertently deceived your own family with the promise of a solid foundation, which in fact turned out to be wholly superficial, and worse than that fatally contaminated?
In this analogy the foundation is the principle of consent, the land is the Belfast Agreement and the structure is Northern Ireland’s place within the Union.
Tomorrow in the Court of Appeal it is the defining moment for pro Agreement unionism, who sold the 1998 deal on the basis that the principle of consent provided a core protection for Northern Ireland’s constitutional position within the United Kingdom.
If the first instance decision of Colton J on the principle of consent is upheld, then it will demonstrate beyond any doubt that pro Agreement unionism was deceived in 1998, and thus inadvertently deceived others when encouraging support for the Belfast Agreement.
The core reason for unionism to support the Agreement, according to proponents of it, was the principle of consent. This, it was claimed, ensured there could be no constitutional change without the consent of a majority of people in Northern Ireland.
As a noble-minded broad concept, the unionist ‘gain’ of the principle of consent may well be a compelling point. Indeed, it was the fundamental point on the part of pro Agreement unionists. In the absence of the principle of consent, they could not even have seriously sold the Agreement to themselves never minded try to persuade the rest of unionism.
However, it seems there was a fatal deception at the heart of the unionism’s apparent ‘win’ from the Agreement. No one thought to explore what the principle of consent actually guarded.
If we go to the Ireland Act 1949, it can be seen from the introductory text that there are two concepts in relation to the principle of consent within section 1 of that Act (which was a forerunner to section 1 of the 1998 Act). It directs itself to the constitutional position and territorial integrity of Northern Ireland’s place within the United Kingdom.
The constitutional position relates to the substance of Northern Ireland’s place in the Union. And what is the substance of the Union?
As a legal construct, the Union is the Acts of Union 1800. It follows that a protection for the substance of the Union, must protect everything that makes up the Union.
The concept of territorial integrity is primarily directed towards symbolism. It relates in effect to the title deeds of Northern Ireland. In regards to Northern Ireland’s place in the Union, it is the last thing. The final handing over of territorial control.
It seems that the concept of constitutional position vanished after the Ireland Act 1949, and certainly finds no expression in section 1 of the Northern Ireland 1998.
That brings us back to the principle of consent. Does it protect the substance of the Union, or merely the symbolism?
Put simply; can you change everything but the last thing in relation to Northern Ireland’s constitutional place in the Union?
That is the question the Court of Appeal will answer on Monday.
In the first instance Colton J held that section 1 of the Northern Ireland Act 1998 (the principle of consent) was purely territorial. It related solely to the formal handing over of territorial control over Northern Ireland, and regulated no other changes.
In short, the Union itself could be incrementally dismantled, law-making powers could be handed to Dublin (in the same way they have been handed to Brussels via the Protocol) and everything about Northern Ireland’s place in the Union could be altered, so long as the formal handing over of the title deeds did not take place.
That, some may say, is indeed an accurate reflection of the ‘piece by peace process’; the incremental weakening of Northern Ireland’s place within the Union, until the final handover of the title deeds becomes inevitable as a consequence of the fact an all-Ireland has been practically embedded via a slow deliberate process, the pre-determined outworking of the Belfast Agreement.
It is trite to point out that not even the most ardent pro Agreement unionist would have ever signed up to the Belfast Agreement had they been told that it in fact the key unionist guarantee was purely symbolic, and in fact offered no protection to the substance of the Union at all.
And so, if the Court of Appeal upholds Colton J on the symbolic nature of the principle of consent (in so far as it relates solely to territorial integrity), the core fundamental root of pro Agreement unionism’s case for the Belfast Agreement is manifestly unsustainable.
The deceptive nature of the Belfast Agreement will be plain for all to see, so how could any unionist- having been so fatally deceived in the 1998 Agreement- continue to advocate support for, or operating the institutions of, that Agreement?
You cannot, with any credibility, say ‘here is the fundamental justification for supporting the Belfast Agreement (the principle of consent)’ but when the principle of consent is shown to have been a deceptive snare, then simply just gloss over that and continue with the Belfast Agreement anyway.
The Court will also determine important questions around whether the European Union (Withdrawal) Act can have the effect of subjugating or causing the implied repeal of the foundation of the Union in the form of the Acts of Union.
It presents a real dilemma for a Court that many in unionism/loyalism suspect entertain entirely political motivations of its own. And needless to say, those motivations do not direct themselves towards a positive outcome for Unionism.
If the applicants win, the Court will effectively bring an end to the Protocol. However, if the applicants lose then given the issues, the Court will have handed anti-Agreement unionism the greatest gift imaginable. Neither a natural choice for the judiciary in Northern Ireland.
Should the Court determine that the Acts of Union have indeed been strangled by the Protocol, and thus there has obviously been constitutional change, and equally that the principle of consent doesn’t apply, then whatever about the motivations of the Judges making such determinations, they will have effectively written an impenetrable manifesto for anti-Agreement unionism.