By Jamie Bryson
In a detailed Belfast Telegraph report by Allison Morris it is being reported that Lis Truss will set out in broad terms- but not publish- the proposed legislation which will be laid in June to strip out large swathes of the Protocol.
On Monday the Belfast Telegraph also carried a significant article by Boris Johnson which confirms Parliament will be told of the way forward in the coming days, but also gives a clear nod to the principle of consent which was understood in 1998 to protect the constitutional status of Northern Ireland within the Union; this naturally was taken to include the economic element of the Union (as embodied by Article VI of the Act of Union).
The significance of this should not be underestimated; it has been a key issue for unionists illuminated by the Protocol, namely that section 1 (1) of the 1998 Act (which is the principle of consent in domestic law) operated to protect merely the symbolism rather than the substance of the Union. Put simply, in practice you could change everything but the last thing in relation to the Northern Ireland’s place in the Union, the last thing being the final formal handover sovereignty. This is entirely incompatible with the constitutional guarantees given to Unionism in 1998.
It is welcome that the Government is by implication recognising this key issue and it is expected there will be some legislative action to correct this fundamental imbalance, in addition to removing the Protocol.
Alongside this constitutionally significant issue, the Prime Minister also narrows the ‘no selfish or strategic interest’ concept first set out by Peter Brook. The overturning of this practical neutrality has always been a key objective of unionism, and it is important that the Government is now making clear that is not, and never will be, neutral on Union.
Whilst those are solid and welcome constitutional commitments, the rest of the article by the Prime Minister is short on detail as to how the Protocol will be dismembered. There is the somewhat artificial distinction between ‘scrapping and changing’; in practice only the former will ever be acceptable, but if symbolically they want to call that merely ‘change’ then so long as the key organs of the Protocol are stripped out and it is left as a corpse- never to return- then who cares?
It is reported in the Belfast Telegraph and by other outlets there will be a number of key themes to the legislation including by implication restoring the Act of Union, stripping out the jurisdiction of the European Court of Justice and streamlining the movement of goods from GB-NI so that all those moving to Northern Ireland can move freely, with only those clearly destined for the Republic of Ireland.
The crucial issue around this is the ‘at risk’ principle, which it is expected will be reversed. Presently all goods travelling from GB-NI are deemed ‘at risk’ of entering the EU Single Market until proven otherwise. This is what causes the Irish Sea border down the middle of the United Kingdom.
It seems rather than all goods deemed as being at risk, all goods will instead be deemed to be not at risk unless clearly destined for the Republic of Ireland, at which point they will be subject to checks.
Naturally it is probable that the EU would say this approach provides insufficient protection for the EU Single Market, but that is their problem. If they are not satisfied with the ‘two lane’ approach, then the EU are free to construct their own infrastructure and checks on the NI-RoI land border. That would be a matter for them, and not the responsibility of the UK who have indicated they have no interest in hardening the land border.
The most crucial provision however will be stripping out the supremacy of section 7A of the European Union (Withdrawal) Act 2018. This is akin to a ‘pipe’ through which the Protocol and its obligations flows into domestic law without further enactment.
At present section 7A “subjugates” the Act of Union- stripping out its supremacy would restore the constitutional supremacy of the Act of Union. This may seem like a niche point of interest only to constitutional law geeks, but it is not. It is in fact absolutely fundamental.
Throughout the Prime Minister’s Belfast Telegraph article he refers repeatedly to the ‘economic rights’ of UK citizens in Northern Ireland. Taken at face value, this would seem to be a strong nod towards the Act of Union, and the fact the principle of consent in the 1998 Agreement should have operated to protect it.
If the Act of Union is restored and has primacy over the 2018 Act (and specifically section 7A of same) then Article VI of same prevents any constituent part of the United Kingdom from being on an unequal footing in matters of trade. In short, NI couldn’t have privileged access to the EU single market alongside the UK internal market.
The Act of Union would therefore stand in the way of the very fundamentals of the Protocol.
Any astute observers will recall there was an effort to insert an amendment stripping out the supremacy of section 7A laid in the House of Lords by Baroness Hoey on what was on the face of it an entirely irrelevant bill.
However, history may well trace the genesis of the coming legislation back to what to the untrained eye appeared like a bizarre amendment in the House of Lords, the substance of which has been accepted by the Government and repackaged into Protocol dismantling legislation.
It is not only the Act of Union that will fundamentally erode the Protocol, but equally the stripping out of the jurisdiction of the European Court of Justice will, in practice, have the same effect in relation to NI’s access to the EU single market.
Access to the EU single market is predicated upon the overriding jurisdiction of the ECJ to rule on trading disputes. Therefore, no ECJ means no access to the EU single market.
Whilst the legislation may not expressly free NI from the shackles of the EU single market, by implication it will do so because the EU will not be able to allow part of the United Kingdom which is beyond the jurisdiction of the ECJ to have access to their single market.
This, alongside the constitutional barrier to leaving NI on an unequal footing (either advantageous or disadvantageous) which will exist in the form of the restoration of the Act of Union, will effectively blow up the core concept of the Protocol.
Unionism has a mandate to withhold consent for power sharing until the Protocol is removed. This mandate must be respected by others in Northern Ireland, and strictly adhered to by unionist parties, particularly the DUP who have stood firmly behind the commitments they made to the electorate.
As the largest unionist party, the obligation rests foremost with the DUP, and thus far they have shown an iron resolve. This was reiterated last night when Sir Jeffrey Donaldson again made clear that whether any solution was acceptable would have to be measured against the DUP’s seven key tests.
A cornerstone of those key tests is the restoration of the Act of Union. This prevents any ‘best of both worlds’ or dual market access concept, and therefore stands as a bulwark against the core ingredients of the Protocol itself.
The confirmation of impending legislation (which has already been briefed to key stakeholders anyway) and its later publication in June will be insufficient to meet the requirement that the Protocol must be removed before power sharing can resume.
Talking about removing the Protocol, promising to remove the Protocol or starting work on removing the Protocol does not amount to the removal of the Protocol.
Therefore, whilst the laying (not just the mere publication) of the legislation before Parliament for both first and second reading may potentially give scope for nominating a speaker, there will be no grounds whatsoever for forming an Executive until such legislation is law, and is operative in practice.