By Baroness Kate Hoey
All of us who care about the Union both in Great Britain and Northern Ireland will be looking carefully at the proposed Bill to address issues with the NI Protocol, which it is reported will be published next week (beginning 6th June).
There remains a confusion as to the core issues with the Protocol.
The barriers to trade and disruption caused by checks and controls are clearly significant and causing economic pain to business and the general population. However, the key issue is not those technical matters, but rather the fundamental constitutional pillars of the United Kingdom that the Protocol dismantles.
If the subjugation ( a term used in the High Court) of Northern Ireland’s place in the Union is made invisible, the subjugation nevertheless remains. An invisible border is still a border. The constitutional impact is huge.
Put simply; removing checks and controls would be welcome (and indeed is necessary), but it would be insufficient to deal with the Protocol issues to the satisfaction of myself and the pro Union community.
The key test to be applied is whether Northern Ireland’s constitutional position as part of the United Kingdom is restored, and that can only be measured by compliance with the Act of Union, referring to which Lord Trimble rightly said in 1998- “the Act of Union is the Union”.
That issue can not be fudged or finessed,no matter how clever the politician. Article VI of the Act of Union is crystal clear. It requires that all constituent parts of the United Kingdom remain on an equal footing in matters of trade. That is a key component of equal constitutional citizenship, a core component of which is economic rights.
In the Prime Ministers set-piece article in the Belfast Agreement, and in Foreign Secretary Liz Truss’ statement to the House of Commons on the Protocol, the Government clearly recognised both the existence of these economic rights as a key part of constitutional equal citizenship, and further quite rightly acknowledged that the constitutional protection in the Belfast Agreement (the principle of consent) should operate to protect economic equal citizenship rights as part of the protection for Northern Ireland’s constitutional status.
As has often been said, when it comes to Northern Ireland’s constitutional position, you can not change everything but the last thing, the last thing being merely the final formal handover of sovereignty. Or, as Jim Allister QC put it, you can not salami slice the Union.
It is clear then that not only does the subjugation of the Act of Union (and thus the Union and the equal constitutional rights of citizens in NI) dismantle the foundational basis of the United Kingdom of Great Britain and Northern Ireland, it does so without triggering the supposed principle of consent in the Belfast Agreement, which unionists understood to be a constitutional protection which meant more than merely requiring consent for the final handing over of the title deeds. When I supported the Agreement in the referendum of 1998 that was certainly what I believed was what we voted for.
In the minds of unionists, the principle of consent meant that in regards Northern Ireland’s status as part of the United Kingdom, you couldn’t change anything, until you changed the last thing. Or put another way, until there is a border poll which votes to leave the Union, Northern Ireland is entitled to remain a full and integral part of the Union.
If the Court of Appeal is correct, and the principle of consent is more of a meltable fireguard rather than a constitutional safeguard, then plainly this needs fixed to restore the fundamental balance and respect for the rights of both communities which supposedly formed the heart of the Belfast Agreement.
It is of course number seven of the DUP’s key tests, and it is an issue which has also been repeatedly raised by Jim Allister QC, Jamie Bryson and a number of others including myself.
In the first hearing of our Judicial Review, John Larkin QC- one of the foremost constitutional lawyers in the United Kingdom- described the manner by which the principle of consent was operating as a ‘deceptive snare’ for unionists.
Therefore, alongside resolving the Protocol, the principle of consent must also be amended as a matter of domestic law (section 1 (1) of the Northern Ireland Act 1998) in order to provide the protections that was promised to the pro Union community in 1998.
But first the priority has to be to right the most obvious wrong and that can only happen by the full restoration of Article VI of the Act of Union.
Therefore, the key test within any Protocol legislation will be whether its effect is to lift the subjugation of the Act of Union. If it does not, and the subjugation remains, then such legislation would not, and could not, represent a solution.
I like all unionists and indeed Members of Parliament will be looking carefully at the text of the Bill and its effects, alongside closely studying the official explanatory notes which must clearly outline the restoration of the Act of Union.
I urge the DUP leader Sir Jeffrey Donaldson to stand firm on the crucial number one of his Party’s seven key tests – the restoration of the Act of Union. This is a red line which no unionist could possibly cross.
If a devolved Government is to be up and running Northern Ireland must first become, once again, a full and integral part of the United Kingdom with all constitutional and economic equal citizenship rights. Therefore, the key test is whether the foundational constitutional statute is restored. It may sound legalistic but this is absolutely fundamental to British citizens in Northern Ireland.
Baroness Kate Hoey is a member of the House of Lords and from 1989-2019 was a Member of Parliament. In 1999 she was appointed as Minister of Sport in Tony Blair’s Government, after having served prior to that served in the Government as Parliamentary Under-Secretary of State for the Home Department.