Unionism is lawfully stopping checks- and nationalism has no answer
By Jamie Bryson
We have seen varying responses from Sinn Fein (and nationalism corporately) in relation to the reality that the Union-subjugating Protocol requires Executive approval. Nationalism and the guardians of the Belfast Agreement wanted it protected “in all its parts”.
Unionism is dutifully protecting the Agreement, in all its parts.
None of nationalism’s responses have any substance, and appear to become more desperate by the day.
Let us dismantle them in turn.
(1) Executive approval is not required- we will block it from the agenda
Sinn Fein initially committed themselves to this response. It was, perhaps, the most legally illiterate of all (a high hurdle given the weakness of all their points).
In the first instance, it is simply crystal clear that implementation of the Protocol is a matter which is significant, controversial and cross cutting. It does not even need to satisfy all three tests, it need only satisfy one. It is therefore beyond any doubt that the implementation requires Executive approval.
As part of this initial approach, Sinn Fein majored on repeating a line about international obligations requiring Protocol implementation. They had obviously failed to read section 10 (1) (a) of the European Union (Withdrawal) Act 2018. In short, far be it from the obligations arising from the Protocol having the effect of disapplying the operation of section 28A of the NI Act, the obligation is in fact to act compatibly with its provisions.
(2) The Executive already granted the necessary authority in May
The next position adopted by Sinn Fein was to rely upon a general Executive minute in May which simply ‘noted’ that DAERA was the lead Department on the Protocol. This of course illuminates the worthless nature of this minute; it authorises nor mandates nothing at all.
But moreover, Sinn Fein appeared to be entirely blind to the inconsistency with this new position with their initial riposte. Their new position resolved to this; in May the Executive provided the authority, which we say the Executive has no role in giving.
This second position was the fatal strategic error for Sinn Fein; they have now by implication- given their reliance upon a Minute where (they wrongly claim) authority was agreed- plainly conceded that the Protocol does therefore need agreement.
The minute in any event can be simply neutralised. A DUP Minister just refers it back pursuant to section 28A (5) and paragraph 2.4 (v) of the Ministerial Code and says ‘there is X amount of competing interpretations of this minute, in the absence of a positive affirmation as to which one prevails there is no authority to rely upon any of them’. It is trite to point out that that paper could simply be blocked from the agenda, or at the Executive itself. The minute then becomes completely worthless.
Realising the fatal error in their second proposition, Sinn Fein then came up with another superb example of just how little they understand what is going on.
(3) DAERA Minister said in 2020 they had obligations to implement the Protocol
The third proposition is yet another volte face. Having first said that no Executive approval was required, and then pivoting to say it in fact was required but was given in May 2021, the third proposition then appears to abandon the first two propositions, and simply produces an answer to an Assembly question from September 2020.
This point is so ridiculous, it appears a waste of words to even engage with it, but here we are.
Firstly, getting the law wrong previously is no excuse for continuing to get it wrong presently. Put simply, if DAERA misunderstood the law in September 2020, how does that assist in present circumstances? Is it the suggestion that they are bound to keep acting unlawfully?
Secondly, if Sinn Fein had being paying attention to recent developments they would have been alert to two little landmines before they stood on them. In the Pre-Action Protocol letter, the issue of ‘delay’ was addressed in detail and made clear about how precisely the duty crystalised, but moreover specifically outlined the changed legal landscape following NIHRC’s application and Napier (2) (both in 2021).
It seems Sinn Fein don’t understand precisely how the law has been clarified in favour of unionism’s proposition on section 28A (which is unsurprising given one of the main contributors to that outcome was their own activist Sean Napier- so thanks Mr Napier for your efforts!).
The point around how the legal landscape had changed has also been repeatedly expressed by Minister Poots. It seems Sinn Fein weren’t listening.
In short, a 2020 Assembly Question doesn’t amount to a hill of beans because (i) getting it wrong in 2020 is no authority for getting it wrong in 2022; and (ii) it is elementary to point out that 2020 is before 2021, when of course the legal landscape changed thanks to the NIHRC case, and the industrious endeavours of Sinn Fein activist Sean Napier.
Sinn Fein’s reliance on Departmental Solicitors
In a tweet from Michelle O’Neil, which was the epitome of confusion, she urged the DUP to take the legal advice. Presumably from the DSO. The only person who would take advice from the DSO on such an issue is someone who wanted to act unlawfully.
The DSO, whether for political reasons or out of sheer legal incompetence (that’s up for debate), recently advised Nichola Mallon she had the power to proceed with the interconnector project (found to have been unlawful) and advised Ministers Mallon and Hargey that taking legal action to try and force the PSNI to target Tigers Bay cultural bonfire wasn’t significant and controversial, and thus didn’t require Executive approval. Wrong again.
If there is to be legal advice taken on the issue, it should be competent legal advice.
Nationalism has no answer to the substantive point
None of the propositions put forward by Sinn Fein- or the Alliance or infantile SDLP- have any substance. There has been no answer to the point that the Protocol implementation requires Executive approval.
One attempted riposte did come from a sneering twitter contribution by Newton Emerson, a supporter of the Protocol. Initially the section 28A point was labelled a meaningless “stunt” (using the language of nationalism for whatever reason) because the UK Government would simply override any decision to halt checks.
This would require a section 26 direction, which is power given to the Secretary of State to ensure compliance with international obligations. As I pointed out to Mr Emerson, there would be serious legal difficulties as to the deployment of a section 26 direction to override provisions of the international obligations in the Belfast Agreement and in domestic law. In short, the SoS would have to use a provision designed to ensure compliance with international obligations, to disapply one set of international obligations in order to give precedent to another.
All of this then has to be viewed in light of the Protocol itself requiring protection of the Belfast Agreement “in all its parts” and section 10 (1) (a) of the 2018 Act requiring a Minister of the Crown to act compatibly with the Northern Ireland Act 1998.
Given the subject matter, which is interconnected with the 2018 Act, it would seem to be a rather insurmountable hurdle to suggest there would be any power to issue a direction to disapply a provision of the 1998 Act.
Mr Emerson’s next point was to then say that whilst Executive approval may well be required (it seems beyond the doubt of any objective observer it is), that they are obligated as a matter of law to give it.
That would render section 28A of no practical force of effect, and operate as an arbitrary fetter on its provisions.
The question then is this, if the proposition is that there is a fetter on the use of section 28A (a key provision in a constitutional statute), then where is it? Can anyone point to any statutory provision which has the express effect (and, to interfere with a constitutional statute, you must do so expressly) of fettering section 28A?
And that is the question to which nationalism has no answer. If anyone is facing ridicule on this issue, it is they.
All the talk of ‘stunts’ and all of the ad hominem attacks cannot conceal the stark reality; on this issue nationalism is the Emperor with no clothes.
It really now is the Belfast Agreement or the Protocol. They were told long ago they can’t have both.