By Jamie Bryson
A fundamental question arises within the imposition of the Protocol vis-à-vis section 1 (1) of the 1998 Act. It can be summarised as this; does the protection within section 1 (1) of the Northern Ireland Act in relation to the constitutional status of Northern Ireland within the United Kingdom apply to the substance of the Union, or merely the symbolism?
Developing this question, it essentially requires us to confront the constructive ambiguity within the Belfast Agreement (sometimes referred to rather absurdly as the ‘spirit’ of the Agreement) and its real trajectory.
Protecting the substance of Northern Ireland’s place within the United Kingdom means that all of the core foundational principles of the Union are protected within the sphere of the ‘constitutional status’ of Northern Ireland. In short, it means that Northern Ireland can’t be incrementally stripped of all the component parts that make up the Union, until such times as Northern Ireland is part of the United Kingdom in name only.
If, however, the protections merely extend to the symbolism of the Union then there is nothing to prevent all the core foundational planks which constitutes Northern Ireland’s place in the United Kingdom being incrementally removed, until the only thing remaining is the formal technical transfer of sovereignty. As succinctly put by John Larkin QC in the High Court; the severing of the last tie.
If we follow Lord Sumption’s advice to distil law to its simplest form, the issue can be illuminated with the following analogy: If Northern Ireland is a house; can it be stripped of all its interior, refurbished and the internal walls knocked down to in practical terms enjoin it as one with the neighbouring property, without impediment? The house would of course symbolically on the outside appear as two distinct properties, but the practical reality would be quite different. The substance of the house would be fundamentally altered, with the only tasks remaining for the complete harmonisation being the symbolic transfer of the deeds and the knocking down of the little wooden fence dividing the properties from the outside.
This question raises a fundamental issue for Unionists. If section 1 (1) of the 1998 Act merely protects against the severing of the last tie (the symbolic protection theory) then it is obvious to point out that the ‘process’ (which is the term used for the outworking of the Belfast Agreement) is empowered, and arguably designed, to incrementally dismantle the substance of the Union.
That forces a confrontation between the competing meanings attached to the Belfast Agreement by Unionists and Nationalists. If the Belfast Agreement was the start of a ‘process’, then plainly such a process is perpetually progressing towards a pre-determined end point; it, by its very definition, a process has a beginning and an end. If, however, the Belfast Agreement was a settlement, then the substance of the Union cannot be incrementally altered as part of a progression towards the last lowering of the Union flag.
In the Nationalist view of the agreement, it is a process which is designed to incrementally progress towards a United Ireland. This of course necessitates that along each step of the way the substance of the Union is weakened and Northern Ireland’s ties to GB are loosened. In this view, the protections within section 1 (1) of the 1998 Act merely exists in relation to the formal handover of sovereignty. This is the ‘symbolic’ theory of section 1 and it is trite to point out that if it permits the handover of lawmaking powers to Dublin without offending the ‘status’ of Northern Ireland, then nothing would prevent the similar handing of powers to Dublin without consent required in section 1 (1) of the 1998 Act.
In the Unionist view of the agreement, it is a settlement and section 1 (1) of the 1998 Act protects the substance and founding principles of the Union. It is only following a referendum in which the majority of those in Northern Ireland (and in parallel the Republic of Ireland) vote for a United Ireland that any of the foundational planks or internal UK ties can be weakened or removed. This is the ‘substance’ theory of section 1.
It would appear to any rational observer that the last twenty-three years politically plainly lends itself to support for the symbolic theory. Two propositions arise if it transpires- as it appears- that the symbolic theory is that which prevails. Either Unionism continues to willingly participate in the incremental destruction of the Union, or else decides that the Belfast Agreement was little more than (again as succinctly put by John Larkin QC) a “deceptive snare” and takes robust political action to remedy this injustice and deceit perpetrated upon our community.
The Protocol undeniably alters the substance of Northern Ireland’s constitutional position within the United Kingdom. Even taking the Government’s own case at its height, this is the constitutional effect. The Act of Union is the Union in law. If the Act of Union has been (as the Government suggests) subject to implied repeal, then the substance of the Union has been altered. If this is permissible within section 1 (1) of the 1998 Act, then the ‘symbolic’ theory prevails and as such demonstrates that- as a matter of law- the Belfast Agreement (which is given effect by the NI Act) in fact offers no genuine protection to the Union.
It is worthwhile to dismiss the Nationalist argument very succinctly- advanced most recently by Claire Hanna MP without challenge at the NI Affairs Committee- that if consent is required for implementing the Protocol, then the same must be true for Brexit itself. This argument fundamentally misunderstands section 1 (1) of the 1998 Act. It- and the Belfast Agreement- deals with Northern Ireland’s constitutional position within the United Kingdom; it does not lend itself to matters of the collective United Kingdom position in the European Union. Brexit does not (or should not have) altered Northern Ireland’s status within the United Kingdom, therefore section (1) of the 1998 Act is irrelevant. However, in imposing the Protocol this does alter Northern Ireland’s constitutional position vis-à-vis the United Kingdom, and therefore does attract the provisions of section 1 (1) of the 1998 Act.