By Rt Hon Sir Jeffrey Donaldson MP
Leader, Democratic Unionist Party
With the economic and political instability created by the Protocol, it’s time for the government to make good on the promised constitutional guarantee for Northern Ireland.
Last week the Court of Appeal in Belfast ruled that the constitutional guarantee (or the consent principle) in the Belfast Agreement, far from preserving Northern Ireland’s status within the United Kingdom, merely applies to a final transfer of sovereignty.
This has served as a wakeup call to those who believed the consent of the people of Northern Ireland was required for any change to our constitutional status. Section 1(1) of the Northern Ireland Act 1998 states, “It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.”
Writing for the Court the Lady Chief Justice held that, “It is clear that section 1(1) only relates to a change in the formal constitutional status of Northern Ireland.” Properly understood – and assuming the judgment of the Court of Appeal is not overturned by the UK Supreme Court – this means that the constitutional guarantee has never operated to prevent a change in the status of Northern Ireland short of a final transfer of sovereignty.
This is in direct contrast with the understanding of Lord Trimble who has stated 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.”
This should be troubling to unionists for three separate reasons.
Firstly, it is not the constitutional guarantee on which the Belfast Agreement was sold to unionists in 1998.
Secondly, it has not operated to protect Northern Ireland from having huge swathes of our laws made by the European Union, with no democratic input whatsoever from the people of Northern Ireland.
And thirdly, the terms of the guarantee would not prevent powers being transferred to all Ireland institutions or quasi-joint authority completely undermining the spirit of the Belfast Agreement.
But it is not enough for unionists simply to wring our hands and to complain. We need to pursue a dual strategy to prevent the salami slicing of our constitutional position.
We need legislative change which is a real and meaningful protection for the Union and secondly, we must work to ensure that we can sustain majority support for our position.
It is time for unionism to move onto the front foot and start setting the agenda. Too often we have adopted a ‘what we have, we hold’ mentality rather than focussing on strengthening our constitutional position. The constitutional guarantee must be made real. We must now push for the guarantees that we were promised to be enshrined in legislation.
In addition to the existing provision at section 1(1) of the Northern Ireland Act 1998, I would suggest an additional provision be considered. For example, “Any” (post 1998) change to Northern Ireland’s constitutional status within the United Kingdom should require the consent of a majority of the people of Northern Ireland voting in a poll held for that purpose or should be subject to a cross community vote of the Northern Ireland Assembly.”
Such a provision is entirely consistent with the implication of the government’s publicly stated position in relation to Northern Ireland and gives primacy to the people of Northern Ireland. No one who believes in the democratic process could plausibly oppose it.
In the aftermath of the election on May 5 and as a way of providing greater confidence to the people of Northern Ireland in light of recent events I will be pushing for the government to take forward such an amendment.
However, we must also face reality.
Our ultimate protection will not be found in constitutions but in the will of the people of Northern Ireland. That is why we must move Northern Ireland in the right direction and in a way that can continue to command widespread support in Northern Ireland. That means dealing with everyday issues like fixing the NHS, growing the economy, keeping our schools world class, helping working families and removing the Northern Ireland Protocol which has been damaging to both our economic and political life.
It is the combination of protecting ourselves against changes to our constitutional arrangements without our consent and ensuring we can command majority support for our constitutional position that will prove the long-term guarantee of our position.
The imposition of the Protocol on the people of Northern Ireland cut across all accepted norms for how decisions are taken in Northern Ireland, but our position would undoubtedly be stronger if we had the votes to withhold the consent of the Northern Ireland Assembly.
That is why it is so important that in the coming weeks we make the case for change, not just on the constitutional grounds that matter to unionists, but also that we rally support for my five point plan for Northern Ireland.
At this election I will be seeking to maximise unionist representation in the Assembly by encouraging support for greater unionist co-operation and unity between those who support the Union.