By Jamie Bryson
Today’s judgment in the Court of Appeal will come as no real surprise. It has been common position amongst unionism/loyalism in relation to this case, and indeed politically contentious cases more generally, that the judiciary in Northern Ireland will always resolve such questions against the interests of unionism. That analysis has been borne out time and time again.
The imbalanced makeup of the judiciary in NI is a subject to which we will return in future (all four of the judges dealing with this case come from a non-protestant/unionist background, which is hardly representative of NI. If it were the other way round and a pan nationalist challenge was dealt with by four judges- none of whom was from a catholic background-, I imagine we would be told the ‘peace process’ would be imperiled by such imbalance!)
I put it no higher than to point out nationalism’s grievance narrative was built upon the claim that because of a religious imbalance in public state institutions, the state was a cold house for catholic/nationalists. It seems nevertheless the application of that theory only goes one way and religious imbalance is fine, just so long as it isn’t in favour of protestants.
However, leaving aside the political motivations of the judgment (and it will be analysed more fully once published in full), it does provide a final and complete answer to every claim advanced in favour of the Belfast Agreement by its supporters.
They told us the principle of consent (which finds itself in section 1 (1) of the Northern Ireland Act 1998) protected the constitutional status of Northern Ireland within the Union.
Therefore, all the compromises to be swallowed- the IRA’s surrogates in Government, the destruction of the RUC, the enforced and engineered North-South harmonisation to name but a few- was worth it, because we had ‘won’ the principle of consent.
Well no, we hadn’t ‘won’ anything at all. Indeed, the principle of consent within the Belfast Agreement far be it from enshrining some new safeguard for our place in the Union, in fact weakened its forerunner found in the Ireland Act 1949.
As is plain from the introductory text of that statute, the principle of consent (which was also- like the 1998 Act- found in section 1 of that Act) related to both the ‘territorial integrity’ and ‘constitutional position’. Put simply, both the substance and symbolism of the Union.
However, when it came to section 1 of the 1998 Act the concept of ‘constitutional position’ had been airbrushed away, and thus all that remained was the symbolic safeguard for ‘territorial integrity’. It is worth pointing out that whilst it seems everyone in 1998 missed this, Bob McCartney QC did not. He tried to warn unionism, but no one wanted to listen. There are many people who owe that man an apology.
At this juncture, it is worth setting out some words of Lord Justice McCloskey who published an extensive concurring judgment. The intellectually lightweight nature of the Lady Chief Justice/Lord Justice Treacy judgment when weighed against that of the concurring McCloskey LJ judgment is stark.
In regards to the Protocol’s impact- he could not possibly have been clearer:
“there is a customs and regulatory border between NI and GB…”
“NI belongs more to the EU market than the UK internal market”
“In basic terms the international deal, ultimately, struck between the UK and the [European] Union sacrificed the longstanding soft border between NI and GB (dating from the Act of Union) and altered internal trading arrangements”
It is difficult to envisage a more impactful change to the substance of Northern Ireland’s status within the Union than placing NI primarily in the EU rather than the UK internal market (and thus ‘subjugating’ the Acts of Union itself).
All of this, it must be remembered, was in pursuit of rewarding the threat of IRA terrorism (weaponised by all nationalist parties in NI, and the Irish Government) by ensuring there would be no land border where it should be. Thus, in keeping with the ethos of the ‘peace process’ – unionism must give, and nationalism must get– it was determined that in order to placate nationalists, unionism must again suffer.
But not to worry I hear the proponents of the Agreement cry:
We secured the constitutional position of Northern Ireland within the Union by achieving the principle of consent!
We urged everyone to swallow the endless concessions to nationalists, because ultimately, we got what matter- the Union is secure!
The judgment of the Court of Appeal couldn’t be clearer, the principle of consent (section 1 (1) of the 1998 Act) does not in fact regulate or guard against changes to the substance of the Union at all, rather it only applies to the final formal handing over of the title deeds.
And thus, for example, law-making powers could be handed to Dublin, and so long as Northern Ireland was as a matter of territorial sovereignty under the nominal control of Westminster, the principle of consent would offer no protection at all.
It is clear therefore that pro Agreement unionism was fundamentally deceived in 1998, and thus in turn (let us generously say ‘inadvertently’) deceived those they encouraged to support their position.
But whatever about that, the present position is absolutely crystal clear. The principle of consent is utterly worthless and does not, in any shape of form, offer the protection pro Agreement unionists thought it did.
Don’t take my word for it; here is and extract from the judgement quoting the affidavit of none other than Lord David Trimble:
“He [David Trimble] says that he negotiated the Agreement and the community he represented accepted ‘unpalatable compromises’ in order to reach an end to the terrorist campaign. He also stresses that they did so because I was able to argue that their position as citizens of the UK was safeguarded by the commitment that they would have a direct say in any change in the status of Northern Ireland as part of the UK.”
The effect of this admission is obvious. The sole basis for unionism supporting the Agreement, by the yardstick of the man who led unionism into the Agreement in good faith, was that the principle of consent safeguard the position of Northern Ireland’s status as part of the UK.
It is unarguable that the true effect of the principle of consent (it is merely territorial and directs itself solely towards the final handover of sovereignty- nothing else) is to render the basis for unionist support for the Belfast Agreement to be based upon a fundamental and demonstrable falsehood.
As David Trimble makes clear, no one would have swallowed the relentless stream of concessions (and by the way, no one should have anyway) to nationalists, save for the promise of the principle of consent.
Pro Agreement unionism were conned, deceived and in turn lead unionism into a process which is a trap. Those intellectually honest pro Agreement unionists- such as, to his credit, Lord Trimble- at least have the decency to admit they were deceived, and in turn face the consequences of that for the future Agreement- namely accepting that no self respecting unionist could credibly continue to operate its institutions.
Unsurprisingly we have already had some ill-informed, and to be honest utterly preposterous, contributions from some elements of the modern UUP which appear to suggest their commitment to the Belfast Agreement is undiminished (indeed, bizarrely, in some respects it seems even enhanced), notwithstanding the fact that the reality (that it is a deceptive snare) has literally been illuminated in bright flashing lights.
The majority of these (and I am sorry, it is time to call them what they are) utterly idiotic contributions come from a place of zero understanding of the constitutional issues at play.
It is necessary to spell them out in a child-like manner for some ‘unionists:
 Unionist support for the Belfast Agreement was based upon the fundamental safeguard of the principle of consent, which purported to protect against any diminution of Northern Ireland’s constitutional status. Don’t take my word, read the words of David Trimble.
 The substance of the Union as a legal construct is denoted by the Acts of Union 1800. This is what creates the political and economic Union of the United Kingdom
 The ‘Protocol’ has “subjugated” (the Court’s own words) the Acts of Union. Subjugation means “being under the domination or control, especially by conquest”.
 This subjugation includes “NI being primarily in the EU market rather than the UK market”; “created a regulatory and customs border between NI and GB”; and “The GB/NI geographical border…has become hardened, contrasting with the arrangements of the past three centuries”
 Therefore, the substance of NI’s constitutional place within the United Kingdom has been altered.
 The principle of consent- as constructed in section 1 of the NI Act 1998- does not prevent such a change (or indeed any change) to the constitutional status of Northern Ireland other than the formal final handing over territorial sovereignty. In short, you can change everything but the last thing.
 It follows that the fundamental basis for pro Agreement unionism’s case for the Agreement (as set out by Lord Trimble) is unsustainable. There is in fact no safeguard at all for Northern Ireland’s constitutional position, other than in relation to the final handing over of the title deeds. In theory, law-making powers could be devolved by Parliament to Dublin, and this would not trigger the apparent principle of consent ‘safeguard’.
And so, the case made by pro Agreement unionism has been finally and definitively been shown to be fundamentally flawed and entirely unsustainable.
It is a matter of indisputable fact that the Belfast Agreement offers no substantive protection of all for the Union, and in fact operates to incrementally dismantle it.
Only a fool would continue to suggest unionists should have anything to do with it.