By Jamie Bryson
Let us start with a truism, an unshakeable demand that has not, and will not, change for any self-respecting unionist: the Protocol must go.
The notion that fundamental constitutional red line could ever be breached is for the birds. And so, what does it mean?
It means that the Protocol, which partitions the United Kingdom, must be killed off, finished, rendered obsolete. There is no middle ground. As Jim Allister QC rightly said: if we don’t kill the Protocol, it will kill the Union.
However, does it matter whether the Protocol is cremated or left to rot as a stone-cold corpse? No, it doesn’t.
That is why I am not overly bothered if the Government want to talk about ‘change’ when in practice what they propose will really mean scrapping it. It is plain that they are simply trying to appear reasonable and build an arguable defence for the inevitable international law case.
As Anton Spisak- a key ally for the Eurohphile Tony Blair- pointed out, commenting on the Foreign Secretary’s statement to the House of Commons:
“Truss says her objective is not to scrap the Protocol…however, the changes she wants to achieve- a dual regulatory regime in NI, separate customs processes, and a new governance structure- are so substantive that they de-facto amount to a new treaty. Truss is implicitly clear in her remarks that the idea is to remove all aspects of EU law from the Protocol and role for EU institutions.”
The essential issue is whether what the Government is proposing kills the Protocol. And there can be no doubt that what was laid out by the Foreign Secretary in the House of Commons on Tuesday would- if it becomes an enacted and operative statute- dredge out all the key organs of the Protocol.
But again, lets be clear- whilst the shift in Government policy is monumental, for reasons I will set out, it ultimately comes to nothing in the absence of decisive action to turn policy into law. That is why it, at this point, remains nothing more than a staging post and until such times as the legislation is both enacted and operative then there are insufficient grounds for the restoration of power sharing, either in the form of Executive or Assembly.
Whilst being mindful of the clear recognition set out above that the developments are only a staging post, if the legislation transpires in the terms set out, it will satisfy the DUP’s seven key tests, and- crucially- it would compel the restoration of Article VI of the Act of Union. That is the key test, because Article VI precludes Northern Ireland being on an unequal footing to the rest of the UK and thus rules out NI remaining in the EU single market, or being under the jurisdiction of the European Court of Justice.
The statement by the Foreign Secretary developed and recognised the concept of ‘economic rights’ for all citizens of the UK, and expressly made clear these rights should be equal for all constituent parts of the Union. That is an explicit acknowledgement of the constitutional fundamentals of the Act of Union (Article VI of which has been offended by the Protocol), and thus represents a significant Government reversal, including in relation to the case they made in the Court of Appeal in Allister et al.
In addition, the Prime Minister’s article in the Belfast Telegraph contained a hugely significant shift in policy on the application of constitutional protections. The concept of ‘economic rights’ was again developed, but crucially it was made clear that protections for these rights were supposed to be subject to the guarantees in the Belfast Agreement.
The compelling logic of this is a broad reading of the principle of consent to encompass not just the symbolism but also the fundamental substance of the Union, as set out in the Act of Union.
Put simply; section 1 of the Northern Ireland Act 1998 (the constitutional guarantee in domestic law) has broad application and rather than merely applying to consent for the symbolic final formal handover of sovereignty, it should protect the substance of the Union. You cannot change everything but the last thing.
This is a significant reversal of their position in Allister et al, in which they argued section 1 had the narrowest of application, directing itself only to the severing of the last tie.
Of course, in order for this policy shift to amount to anything of significance, it must translate into an amendment of section 1 of the 1998 Act to ensure the broad application of the principle of consent is reflected in domestic law. That must be a key unionist objective, and indeed is reflected in the seventh of the DUP’s ‘key tests’.
The Government also returned to- and indeed broadened- the foundational principle of cross community consent for power sharing, but crucially also in relation to the Protocol. This, again, marks a significant policy reversal (not least as the Government used legislation to disapply cross community consent for the Protocol vote) and effectively strips out the basis for Article 18 of the Protocol- a key unionist demand.
These are significant constitutional developments for unionism, and key staging posts to many long-term strategic objectives. A failure to recognise the small, but significant, advance demonstrated by the Government policy set out in recent days would be a grave error, and remarkably foolish.
It is of course important to stress that policy is just that, it doesn’t amount to anything until it becomes law- but if we do not advance incrementally, moving to staging posts along the way, then we will never reach our destination.
In specific regard to the Protocol the Foreign Secretary confirmed: (1) NI would require parity of economic rights with the rest of the UK (Article VI of the Act of Union); (2) the jurisdiction of the ECJ would cease to apply (the effect of which would be to strip out NI remaining in EU single market for goods); (3) Regulatory barriers for goods for sale in NI will be removed; (4) the removal of customs paperwork for goods moving GB-NI within the UK internal market; (5) the restoration of sovereignty on matters of Tax and spend policies across the United Kingdom.
If, and again it remains merely words until it is accompanied by decisive action, these promises are translated into legislation- as indicated- within the coming weeks, then it would represent a remarkable, more than that- a monumental- achievement for the unionist/loyalist community.
It is worth remembering where we were in January 2021, and where the Government where. The actions of grassroots unionism/loyalism (and Jim Allister from the outset) and latterly political unionism, has forced a fundamental reversal of Government policy on the Protocol. To dismiss that collective unified unionist achievement would be absurd.
The Government made clear that they have moved, primarily due to the choice they have been presented between power sharing or the Protocol. It is beyond clear that the strategy of the DUP/TUV/PUP in supporting, and acting upon, this fundamental message has forced the Government to reverse their own policy.
In contrast the UUP wanted to operate both power sharing and Protocol, whilst talking about changes in parallel. It should be clear to see that such weakness would never have delivered any advance in the unionist position.
As yet, the progress to this important staging post hasn’t translated into the next step of decisive action and that is why strong unionism must continue to hold the unionist picket-line, making clear that there will never be a return of power sharing until the Protocol is removed.
We must not, and cannot, settle for fine words or promised future action. The unionist political mandate is to withhold consent for power sharing until such times as the Protocol is removed. Not to withhold consent until the Government indicates they will in the coming weeks take steps to begin removing it.
The passage of any bill must be accelerated or accompanied by a robust deployment of Article 16. If it is not, then Northern Ireland will be without power-sharing for at least a year, or more, depending on how long it takes for the proposed legislation to be both enacted and operative.