By Jamie Bryson
The instability in Northern Ireland flowing from the imposition of the Protocol has raised fundamental issues with the Belfast Agreement itself, and exposed a fatal contradiction within its very foundations.
In regards to consent, there are two constructs:
One is what we will call ‘governance consent’ which is the outworking of Strand One (5) (d) of the Belfast Agreement and finds expression in section 42 of the Northern Ireland Act 1998 (‘the 1998 Act’).
The other is the ‘principle of consent’ which relates to Northern Ireland’s constitutional status. This finds expression in section 1 (1) of the 1998 Act.
There is a wider question as to whether the principle of consent should be understood to protect the substance of the Union, or whether it is merely symbolic in so far as you can change everything but the last thing; the last thing being the formal handing over of the title deeds in regards to Northern Ireland’s territorial sovereignty.
I have written in detail in regards the substance v symbolism theory. You can read that as part of a lecture delivered HERE. I do not intend to focus on that issue in this article, but the context of the Protocol showing up section 1 of the 1998 Act as purely symbolic (and thus a deceptive snare for unionists) is important.
Returning to the two consent constructs inherent within the Belfast Agreement, the Protocol has exposed the disjointed nature of the two constructs, because both adopt distinct fundamental principles as to the foundational ethos which should underpin decision making.
The governance consent operates on the basis that key decisions require cross community consent. It seems to be a fundamentally accepted principle, inherent within the Belfast Agreement itself, that peace and stability is best maintained by ensuring the arrangements in Northern Ireland can command cross community support.
However, when it comes to the principle of consent- in so far as it relates to Northern Ireland’s constitutional status- there is an entirely different fundamental premise.
Rather than remaining true to the principle of cross community consent being the foundational cornerstone which is necessary for sustaining peace and stability, the principle of consent reverts to majority rule whereby 50% + 1 is deemed sufficient to change (with no prospect for the decision ever being reversed) Northern Ireland’s constitutional status as part of the United Kingdom.
It was this ‘majority rule’ principle which was applied in the imposition of the Protocol. And when it ran up against the key cross community governance consent principle (section 42 of the 1998 Act), it simply operated to disapply it (see Article 18 of the Protocol, section 56A and Schedule 6A of the 1998 Act).
The Protocol therefore did two things in practice:
(i) Its imposition fundamentally altered the substance of Northern Ireland’s constitutional position in so far as it purports to repeal the Union itself as a legal construct (Article VI of the Acts of Union 1800). It did so without triggering the protections of the principle of consent.
If I use this analogy; the principle of consent was meant to be a lock on the door guarding the Union, which is as a legal construct the Acts of Union. The Protocol however simply blew the door of the hinges, rendering the principle of consent ‘lock’ an irrelevance.
(ii) The permanence of the alteration of Northern Ireland’s constitutional status via the Protocol can be achieved via majority rule, given the disapplication of section 42 for the Protocol consent vote in 2024. This therefore overrides the governance consent principles, and in fact uses them to change Northern Ireland’s constitutional status by stealth.
It isn’t difficult to see how fundamental principles have been interfered with by the Protocol, but more than that the inherent imbalance and disjointed nature of supposedly fundamental anchors in the Belfast Agreement have been illuminated.
If, as we are told, the fundamental principle of governance and power sharing in Northern Ireland is cross community consent for key decisions, then how can this be reconciled with section 1 of the 1998 Act in so far as the most consequential decision of all abandons this principle and instead reverts to majority rule.
Those competing positions cannot be reconciled, and as has been demonstrated by the Protocol, pandoras box has now been opened. The demons unleashed by the attempted subjugation of the Union via the Protocol can not be squeezed back into a box.
It is time for Unionism to confront the fundamentally disjointed foundational principles which underpin the Belfast Agreement and the power sharing arrangements which flow from it.
The necessary balance and stability can only be maintained, in my view, by bringing the principle of consent- which finds expression in section 1 of the 1998 Act- into line with the principle of cross community consent which is inherent within the governance arrangements.
In short, as set out at the start of this article there is two consent constructs:
The principle of consent and governance consent. The two must be on an equal footing, otherwise there will always be a fundamental imbalance.
In that respect unionism’s red line for returning to any power sharing Executive must be the reconciling of the two competing consent constructs. That reconciliation can only take place with the principle of consent (which requires a simple majority) yielding to the fundamental principle inherent within governance consent (that key decisions require cross community consent).
The outworking of that reconciliation is that section 1 of the 1998 Act should be amended to require that prior to any border poll, a resolution- on a cross community basis- must be passed in the Northern Ireland Assembly approving such a vote.
That is the price unionism must extract for power sharing. The predictable riposte will be that 50% +1 is good enough to sustain the Union, therefore should be good enough to end it. That position however fails to appreciate that when unionism had a majority to govern in Northern Ireland, that opportunity was denied, and rather democracy was re-moulded to insert nationalism into government as of that.
There was never a sufficient price extracted for that concession, and now is unionism’s last best chance to fundamentally rebalance the Belfast Agreement.