By Jamie Bryson
Note: In this overview, the NI Protocol Bill is described as both a ‘Bill’ and an ‘Act’. Prior to Royal Assent, it is a Bill. After Royal Assent it is an Act. Accordingly, when addressing matters which would apply post-Royal Assent, it is described as an Act, and when addressing matters pre-Royal Assent, it is described as a Bill.
The passage through the House of Commons of the Protocol Bill is a significant moment. However, some commentators- and other political parties such as the SDLP, SF and Alliance have suggested this progress should be enough for unionism to, at the least, nominate a speaker.
This is not so. And here is why:
The Protocol Bill in of itself does nothing, even at the point of Royal Assent. It cannot satisfy any of the DUP’s or unionism’s key tests, because all that it does- at the point of enactment- is provide the mechanisms by which those tests can be satisfied- but does not satisfy them without further action by Ministers of the Crown.
Once the Bill receives Royal Assent and becomes an Act, sections 21-26 come into effect at this stage, pursuant to section 26 (2) of the Act. This brings into force only the final provisions of the Act and doesn’t include any of the core provisions, such as excluding the effect of ‘excluded provisions’ of the Protocol in domestic law via stripping out the supremacy of section 7A of the European Union (Withdrawal) Act 2018.
Section 26 (3) of the Act provides:
26 Extent, commencement and short title
(3) The other provisions of this Act come into force on such day or days as a Minister of the Crown may, by regulations, appoint.
As can be seen, the core provisions of the Bill- including the exclusion from domestic law of the provisions of the Protocol- only come into force on “such a day or day as a Minister of the Crown may, by regulations, appoint.”
The inclusion of the word ‘may’ rather than ‘shall’ reinforces that this is a discretionary choice. In theory, a Minister may choose to never bring the core provisions into force at all.
Therefore, unless and until the commencement order is laid bringing into force the core provisions of the Act, then it in fact does absolutely nothing post-Royal Assent.
The Bill must not only receive Royal Assent and then subsequently be subject to a commencement order for its key provisions, but thereafter the changes envisaged by the intent outlined in the Bill and by the Government can only take place once Regulations are laid by a Minister of the Crown.
In consequence, unionism’s key tests can only be seriously said to be potentially satisfied once three stages have been completed as follows:
- Bill receives Royal Assent
- Core provisions of the Act are brought into force via commencement order pursuant to section 26 (3)
- Regulations are laid to give effect to the intent of the Act
Absent the completion of all three stages, nothing happens. It is therefore intellectually dishonest and/or displays a fundamental misunderstanding as to the effect of the Bill, to suggest that its enactment in of itself has any impact on the Protocol. It plainly does not without further action to (i) bring the core provisions into force and (ii) the laying of Regulations to give effect to the purported intent of the Act.
Unionism provided the DUP and TUV with a clear unequivocal mandate. There should be no power sharing until the Protocol is removed. The Bill, if enacted and its provisions utilised in line with its intent, could arguably provide the basis to restore the majority of unionism’s confidence in power sharing. That is a conversation unionism collectively needs to have at the relevant time.
In circumstances whereby the Protocol legislation does nevertheless still contain some compromises, it may well be the case that political unionism should go back to the electorate to seek a fresh mandate for returning to power sharing arrangements. This would seem to be the best way to preserve the present collective togetherness and strength of the unionist electorate.
In my view, there remain two important issues unresolved- one of which can be remedied within the Protocol Bill, and the other which will require further legislative action- which could happen via the Identity and Language (NI) Bill.
The first issue is that the power to make Regulations within the Protocol Bill does not prevent a future making of Regulations incompatibly with the Act of Union. It is true to say Sir Jeffrey Donaldson has secured a significant commitment from former Secretary of State Brandon Lewis who confirmed to the House of Commons that the use of Regulations should be in a manner compatible with the Act of Union.
However, the Government cannot be taken on its word and moreover these powers will remain even if a new Government exists (unless amended by Parliament).
Therefore, the commitment that the powers be exercised compatibly with the Act of Union should be enshrined within the Bill via an amendment to Clause 22, requiring that in exercising any powers under the Act, a Minister of the Crown must act compatibly with the Act of Union.
The second issue is in relation to the unresolved loophole in the principle of consent within section 1 of the Northern Ireland Act 1998. As shown by the subjugation of the Act of Union, the principle of consent has been shown to be a deceptive snare which protects merely the symbolic final formal handover of sovereignty, rather than the substance of Northern Ireland’s constitutional status.
Put simply; you can change everything but the last thing.
This does not reflect that which unionism was promised in 1998, and given- as all records of contributions from that time will show- unionist support was anchored in the belief that the principle of consent protected the substance of the Union, until this is rectified then even pro-Agreement unionism must accept there is no solid basis for unionist support for power sharing.
In circumstances whereby the Identity and Language (NI) Bill is (outrageously) amending the Northern Ireland Act anyway, an amendment could be laid in the House of Commons by the DUP to crystalise the definition of constitutional status in section 1 (1) of the 1998 Act.
I should add, it would be a scandal if unionism failed to seek to amend section 78F of that Bill given it embeds a trojan of horse of ‘parity of esteem’ as to national identity into the constitutional statue, and places justiciable obligations on public authorities to give effect to same.
Unionism has a great opportunity to re-balance the governance arrangements in Northern Ireland, as well as securing the remove of the Protocol. That opportunity should not be squandered, as another may never come along.