By Jim Allister QC MLA
When the much vaunted ‘consent principle’, long proclaimed as the cornerstone of the Belfast Agreement, turns out to be a fraud and a deceit, then, that Agreement is on the rocks, or should be.
I doubt if there was a single unionist who voted for the Belfast Agreement who for one moment thought the ‘consent principle’ did not protect them irreversibly against unwanted constitutional change. It was their immovable guarantee, which for enough made the unpalatable palatable.
Last week’s Court of Appeal judgement in the Protocol case explodes such consent as a myth.
Three Lord Justices ruled that the foundation of our economic union, Art 6 of the Acts of Union, has been ‘subjugated’ by the Protocol, because one was incompatible with the other and the Protocol rules. To subjugate is to vanquish.
This in and of itself is constitutional change, borne out by the judicial finding that Northern Ireland is now more in the EU than in the U.K.!
Moreover, the court accepted that it is EU legislation – which we do not make and cannot change – which now governs our trade and that Stormont and London is powerless to change such. Thus, in key law-making there has been a transfer of sovereignty. Transfer of sovereignty is the very essence of constitutional change.
But, surely, the Belfast Agreement guarantees that consent by a majority in Northern Ireland is necessary to constitutional change? Apparently not. Because the same judges ruled emphatically that what had happened under the Protocol did not engage the consent mechanism in the Belfast Agreement and required no one’s consent!
They continued to decree that the consent referred to in the Belfast Agreement was strictly limited to the final and ultimate handover of Northern Ireland and applied to nothing short of that.
So, the Union can be hollowed out or salami sliced out of existence without anyone in Northern Ireland being asked or consenting. Only the final hauling down of the Union flag needs consent!
If, as is the case under the Protocol, law making powers can be transferred to Brussels without triggering the need for consent under the Belfast Agreement, then, by the same token they could be transferred to the Dail in Dublin, without offending the bogus consent assured in the Belfast Agreement.
Hence, the supposed consent principle of the Belfast Agreement is indeed a fraud and a deceit.
So, where does this leave the Belfast Agreement and any unionist fidelity to it?
If the central unionist guarantee of the Agreement is bogus, then no unionist can or should sustain any allegiance to it. It veritably now is an exclusively nationalist charter.
In consequence there should be no further operation of any of its structures or institutions so long as the Union-dismantling Protocol is implemented and the consent necessary for such constitutional change is non existent.
This is a seminal moment for unionism. We must decide how much longer we will cooperate in our own destruction, which the Protocol and the Belfast Agreement now combine to deliver.
More considered analysis of the political purpose of both the Protocol and the Belfast Agreement will reveal a symmetry and joint intent.
The trajectory of the Belfast Agreement is clear and confirmed by the only referendum it anticipates – are you yet ready to join the Irish Republic? Its designation as a process, not a settlement, is not accidental.
The Protocol itself fits precisely into this same trajectory – orientating Northern Ireland away from its GB links and reliance and building the stepping stone all-Ireland economy towards the same end goal as the 1998 Belfast Agreement: Irish unity. Could this even be why the British Government embraced the Union-dismantling Protocol because of its fit with the longterm plan of the Belfast Agreement?
Certainly giving Northern Ireland the same Brexit as GB would have seen us grow apart from ROI, while the Protocol binds us together! Do not underestimate the machinations of the Foreign Office and others.
All the more reason why Unionists now need to shake off the shackles of both the Protocol and its elder brother, the Belfast Agreement. Hence the folly of some who, despite betrayal on the consent principle, demand more, not less, Belfast Agreement, even to the point of urging a new cross-border body to oversee the Protocol!
Some unionists are such a gift to the nationalist agenda.
Jim Allister QC is leader of the Traditional Unionist Voice and a MLA for North Antrim. He is a Queens Counsel and prior to returning to frontline politics had a distinguished career as a senior barrister, specialising in criminal and constitutional law.