By Jamie Bryson
Writing this week in the Newsletter, Bertie Ahern set out his position on the current impasse. Mr Ahern is highly regarded by many unionists and loyalists involved in 1998 and thereafter, and, according to those persons, is a man with whom a fair arrangement could be made. He appeared (and appears) to seek to truly understand the unionist/loyalist position.
Indeed, even from my own recent experience, I would find myself more comfortable- despite obvious political differences- relying on his word than on the word of any NIO Minister or official.
Whatever else is said in his article, Bertie Ahern expressly- on two occasions- sets out his belief that the concerns of unionists/loyalists are sincere and must be addressed. This is an important acceptance of reality, and is much more forthright than some of the language emanating from the NIO and other UK Government Ministers, who appear to think that it suffices to entrench the Protocol but with a lick of red, white and blue paint.
Surely the recent LucidTalk poll showing that unionist opposition to the Protocol Framework is hardening rather than softening, with some 62% of unionists willing to forgo Stormont entirely unless the Protocol is removed completely, will have disabused the laughably self-proclaimed ‘hardmen of Brexit’ that we are so easily fooled.
In his article Mr Ahern speaks of a balanced accommodation. That sounds nice but I do take issue with his presentation of sovereignty. Northern Ireland is part of the UK, and the 1998 Act (giving domestic law effect to the Belfast Agreement) makes it clear that complete sovereignty over NI continues to be vested in the Crown.
It can hardly be credibly disputed (and I do not see that Bertie Ahern does dispute it) that a balanced accommodation can not entail subjugating the foundational constitutional identity rights of one community, in order to preserve the ‘spirit’ of the identity of a competing identity. That is not balance, but imbalance.
The Acts of Union are fundamental constitutional statutes. They provide the legal basis for the United Kingdom, creating both the political (Article 3) and economic (Article 6) foundation of our Union.
Section 1 of the Northern Ireland Act 1998 gives effect to the key guarantee of the Belfast Agreement protecting Northern Ireland’s constitutional status. But what does this concept of ‘constitutional status’ actually mean?
Does it simply mean that before a final formal handover of sovereignty occurs this final step must be preceded by a refererendum? If this is so, then the Union can be entirely hollowed out so that long before Northern Ireland is pushed out of the United Kingdom it has already ceased, in substance, to be part of it.
Or, does section 1 afford, as those Unionisrs who made the Belfast Agreement thought that it did, a protection for the living substance of the Union?
If it is merely the former- as the Supreme Court in Allister et al appears to suggest- then the principle of consent is utterly worthless as a protection for the substance of the Union, and if that is so, then upon what basis can any unionist continue to support the Belfast Agreement given the inherent imbalance that sits at its core?
But, those Unionists who supported the Belfast Agreement, meant to protect the substance of the Union, not create a provision directed towards merely an empty formal final step. And if there is to be any balanced accommodation then the substance of the Union must be protected. Bluntly, altering the Acts of Union is to alter Northern Ireland’s constitutional status, and thus offend the core protection and guarantee that Unionists believed had been given to unionism in 1998.
In Mr Ahern’s article, this is a missing piece; a failure to grapple with this constitutional chasm which has been exposed by the Supreme Court so that the guarantee can no longer be presented as meaning different things to different people.
A deal enshrining a principle of consent that failed to properly define what consent was required for may well have passed as a political fix to prop up a compromise, but once subjected to the Supreme Court scrutiny, the prop has been kicked away.
That legal answer, provided by the Supreme Court, demonstrates that the provision- as far as unionists are concerned (see, for example, the writings of Lord Trimble)- does not do what it was thought to do. The ‘contract of compromise’ has been shown to be a deception, and this raises fundamental issues about the balance of the Belfast Agreement itself.
And so, there needs to be balance achieved in two structures; (i) the foundational structure of the Belfast Agreement must be re-balanced; (ii) the arrangements for the UK- as one Union- leaving the EU must ensure there is a balance between the identities of both unionist and nationalist communities.
It is possible to firstly resolve the Brexit arrangements, and thereafter address the structural foundations of the Belfast Agreement, or indeed, to do it in reverse order. In any event, it would seem obvious that both need to be resolved in order for there to be a solid foundation for power sharing in Northern Ireland, which has at its core the concept of ‘balance’ that Bertie Ahern made the centrepiece of his article.
In regards the Brexit arrangements, the removal of the Protocol, and fundamental alteration of the Windsor Framework which embeds it, is necessary. Whether this can be achieved under the ‘guise’ of implementation of provisions relating to the UK internal market- and therefore within the unilateral sovereign power of the UK- is a matter of interesting debate. If it can, then I doubt any unionist is going to be hung up on the mechanism by which this is brought about, or the language the ultimate outcome is dressed up in. It is the substance rather than the packaging wrapped around it that truly matters.
The outcome must deliver the full and unequivocal restoration of the Acts of Union, and thus Northern Ireland’s place in the United Kingdom.
There is a solution which can deliver this outcome, but can also properly be understood to enshrine the necessary balance. In short form, it requires the preservation of the entitlement to trade freely into the EU single market (and thus assume the obligations to follow EU law) for those who for economic or identity reasons wish to do so, but this entitlement must be preserved in a manner which does not impose these obligations on those who do not trade into the EU single market, and instead trade internally within the UK.
That means a scheme for those who trade into the EU, based on a requirement for those persons to follow EU law, underpinned by criminal law sanction in our courts However, the default position is that UK law applies in the UK, and for those who do not trade to the EU, there must be no imposition of EU law.
This solution adopts the identity/citizenship concept from the Belfast Agreement itself, whereby those who wish to be Irish have the entitlement to be so, and those who do not, do not have that identity imposed upon them.
In regards the issue of the balance of Belfast Agreement itself, think of a Scalextrics track; the participants in the game (in this case the people of Northern Ireland) have committed to racing on the same track (the Union) in perpetual orbit, unless a majority of the participants wish to flip the switch to exit the track and instead go off in a different direction (a United Ireland). There is only one exit path, and the criteria for flicking the switch is clearly defined.
At no stage was there an option to chisel out other nearby exits to take short-cuts to join up with the exit pathway without going through the proper lane.
The Protocol, sorry, the Windsor Framework, wrecks the carefully constructed track, and inserted a new exit point- over which those on the track had no say in- and simply diverted everyone of the track into a new link-track (a form of hybrid British-EU sovereignty) which runs in parallel to the United Ireland exit track, and allows those on it to arrive at that ultimate destination by a route which was never provided for in the balanced accommodation, and which never formed part of the architecture of what was agreed in 1998.
In order to correct this, the vandalism needs repaired, the balance restored and everyone put back on the same track as was agreed in 1998. In order to prevent the same calamity befalling us once again, stronger safety barriers need put in place to prevent unauthorised exits.
Put simply, to properly safeguard the architecture that was purportedly put in place in 1998, the structure needs to be safeguarded.
That means properly inserting into the principle of consent in section 1 of the 1998 Act a definition of ‘NI’s constitutional status’ which prevents changing everything but the last thing. Whilst there can be a debate about where the line is ultimately drawn and what is encompassed, as an absolute essential the Acts of Union must be included.
This doesn’t require going near the high voltage wires of the constitutional identity balance, but instead simply builds safeguards around it. This is the route to restoring the fundamental balance to the Belfast Agreement, and remedying the issues which has exercised even those unionists who supported the 1998 arrangements.
If there is to be the ultimate envisaged balance, namely power sharing between two communities, then this has to be on a fair and equitable basis. There is no such basis in the present arrangements; until there is, no self respecting unionist should be collaborating in the imposition of the vandalism of our constitutional status, and the purported safeguard which (we were told) were the sacred underpinning of power sharing structures.