By Jamie Bryson
The contribution by Bertie Ahern on both Sunday Politics and Nolan is extremely welcome and demonstrates at least an understanding of the sincerely held concerns of the unionist and loyalist community in relation to the Union-subjugating Protocol.
This is significant in so far as, for the first time, a senior political figure in the Republic of Ireland has (whilst albeit expressing his own personal alternative view) recognised the legitimacy of the unionist and loyalist view, on the Protocol and the need to address those concerns in order to maintain the balance of the Belfast Agreement.
In addition, it appears to be a more considered and thoughtful approach than the previous intervention which was deeply unhelpful and, perhaps unintentionally, offensive to working class loyalists. The change in tone can only be welcomed.
Mr Ahern correctly identifies two distinct issues (which are albeit interlocking)- matters of trade and matters of sovereignty. This is a welcome departure from the Irish Government’s consistent position that the Protocol was simply a trade agreement, with no constitutional impact. That is plainly an absurd proposition and amounts to gaslighting of unionists.
The issue was discussed in depth on Monday’s Nolan show.
On this program a republican commentator and Ireland’s Future campaigner (bizarrely introduced as a journalist) treated us to her analysis of constitutional law. In doing so she read out a quote from a Government lawyer (no quote from the applicant’s lawyer giving the other side of the case), in the mistaken belief this was her mic-drop moment.
It would seem elementary to point out that both sides advance arguments, and the court decides independently. The very argument deployed by the republican campaigner (reading out the Government’s assertion in the Supreme Court) has already been independently dismissed by the Court of Appeal, which held that the Act of Union was subjugated and NI was “more in the EU…than the UK”.
The same Government lawyer argued, as discussed in more detail below, successfully that the UK “was no longer a unitary state” and in regulations ‘UK’ was to be read as ‘GB’, with NI treated as the entry point into the EU. This demonstrates the deceptive positions of the Government, which on one hand piously claims there has been no constitutional change, but on the other argues the Act of Union is subjugated and NI is to be treated as part of the EU territory.
It was disappointing the republican contributor was not appropriately challenged.
On the same Nolan show a caller also claimed the Assembly had “absolutely no role in the Protocol”. Again, it is disappointing that it wasn’t pointed out to the caller that he ought to read Article 18 of the Protocol which deals with the consent vote (disapplying cross community consent to neutralise unionists) which must be held by….the Assembly.
The constitutional impact of the Protocol is beyond any rational dispute.
The Government itself has, amongst other things, argued in various legal cases challenging the Protocol that (i) the Act of Union is subjugated by the Protocol; (ii) the UK is no longer a unitary state due to the Protocol; (iii) in the relevant regulations relating to SPS checks (2017/625), ‘UK’ as to be read as Great Britain, with Northern Ireland treated as part of the EU territory.
These arguments have been accepted by the High Court and (in regards the subjugation of the Act of Union) the Court of Appeal, therefore independently confirming the constitutional impact of the Protocol.
It is trite to point out that there are trading issues which could be smoothed, but unless the constitutional issues are addressed, then there is no prospect of progress on the Protocol impasse and thus there will be no unionist-inclusive power sharing in Northern Ireland.
So, whilst it is a significant step forward to hear Bertie Ahern adopt such a positive approach of listening to unionist/loyalist concerns, it should be said that his own view that the Protocol doesn’t change the constitutional status of NI could only be correct if the 1998 Agreement didn’t in fact protect the substance of NI’s constitutional status at all, and rather only directed itself to the final formal handover of sovereignty.
If that is so, then unionists were fundamentally deceived in 1998 and that raises more serious long-time issues around how any unionist to ever again operate Belfast Agreement institutions rooted in such a deception.
However, Mr Ahern is entitled to his view of the Protocol, and it would be difficult to envisage a scenario whereby a political figure of his persuasion would see the Protocol as it is seen by unionists and loyalists. But for present purposes, that is not the point.
He has, to his credit, seen that there is a legitimate alternative view to his own and has expressed a desire to engage with those concerns. That is a significant departure from the aggressive sneering tone we have been subjected to by Varadkar and Coveney who could never be, and will never be, seen as honest brokers by the unionist and loyalist community.
The issue was not that Varadkar and Coveney had a different view of the Protocol, rather it was that they refused to accept that unionists and loyalists could legitimately hold a viewpoint contrary to that set out by the EU, nationalism and the Irish Government.
It wasn’t the case whereby there was an engagement with the concerns and arguments, and there was disagreement as to the merits of various points, but instead unionists and loyalists were dismissed as if we had no right to even make our case.
That is the true gravamen of the distain held by unionists and loyalists for Varadkar and Coveney. They were always entitled to take a different view, but they were not entitled to behave as if theirs is the only legitimate viewpoint and that unionism/loyalism simply had to sit quietly at the back of the bus and accept it being imposed upon us.
As an outworking of that arrogance, both Varadkar and Coveney felt it legitimate to bring with them to the negotiating table the threat of IRA violence, with Varadkar waving around pictures of IRA bombs and proclaiming the prospect of a return to violence was very real. The precedent that has set is a matter of significant concern.
Moving forward, it would seem that the involvement of Mr Ahern would have a far greater chance of beginning to rebuild North-South relationships with unionists/loyalists than any outreach involving Leo Varadkar will ever have.