Alex Kane: Unionists might have to learn to live with the protocol

Humpty Dumpty said, in a rather scornful tone: “When I use a word, it means just what I choose it to mean – neither more nor less.”

Monday, 5th July 2021, 1:00 pm

The word I’m thinking of is ‘entirety’, as in: ‘It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.’

That is from the Northern Ireland Act 1998, which brought the Good Friday Agreement into law. Yet according to Mr Justice Colton who was giving his ruling on the judicial review brought by Jim Allister et al in the High Court last Wednesday, the 1998 act has no impact on the legality of the changes brought in by the NI Protocol.

It struck me as an odd conclusion. There is now a new border between Northern Ireland and Great Britain; and Northern Ireland will be governed by some EU rules and regulations which won’t apply to other parts of the United Kingdom. In other words, Northern Ireland, in its entirety, is no longer a full member of the UK. And not one person in Northern Ireland, not a single one of them, was asked to give their consent to this very significant constitutional change.

Sign up to our daily newsletter

The i newsletter cut through the noise

Jim Allister, Ben Habib and Baroness Hoey, who were among the politicians who took the judicial review against the protocol, outside court last week after the verdict

Justice Colton’s ruling will go to a higher court, possibly even the UK Supreme Court, where those who launched the judicial review will seek to have it overturned. There is no guarantee, of course, that it will be overturned. And if that is the case then unionists are just going to have to learn to live with the reality of the protocol.

But that raises another issue. The constitutional guarantee (NI remains a full part of the UK until a vote decides otherwise) doesn’t, if I understand it correctly, leave space for what might be described as the salami option. I certainly haven’t been able to track down the provision which permits the ending or undermining or slicing-up of the constitutional status quo bit by bit. You’re either fully within the United Kingdom, or you’re not. I don’t see how you can be both. And right now NI is not fully with the UK. How can it be when it is partly within the EU?

I accept the argument – indeed I’ve made it a number of times myself – that NI has long been considered and described as a ‘place apart’. But it was a place apart within the UK: although for far too long, between 1921 and 1972 – and damagingly so – successive British governments allowed unionist governments to nurture the place apart status.

But at no time between 1921 and 2020 was it possible to say that NI was not within the UK: not part of the constitutional fabric of the UK.

Justice Colton’s ruling – which is not yet set in stone, of course – makes it much more difficult to make the case that NI is a full and integral member of and within the UK.

I’m not deaf. I can hear the chorus of “Suck it up, it’s the fault of those unionists who voted Brexit. You brought this on yourself.”

I own my vote. I knew what I was doing on June 23, 2016 and why I was doing it. I don’t have buyer’s remorse, because I didn’t buy what we have right now. I didn’t buy (nor did I vote for) an outcome which changed NI’s constitutional status and undermined my sense of identity.

If I am guilty of stupidity – and maybe I am – it was for believing that the constitutional guarantee (set out in both the Good Friday Agreement and the Northern Ireland Act 1998) meant I would have a say in any change to NI’s constitutional status. According to Justice Colton it seems as if I was wrong to think that.

Mind you, it won’t be the first time I’ve been stupid when it comes to a referendum. I voted for the Good Friday Agreement because I hoped – I genuinely did – it would result in NI being governed collectively, consensually and with common purpose and goodwill. Hmm.

Anyway, we are where we are. And where we are is in a difficult place for unionism. It doesn’t mean the Union is over, though, because that cannot happen without a border poll and a majority supporting the formal ending of the link between NI and GB. But it may mean that unionism will have to find a way of living with something which, while not precisely what we have now, will still be the protocol in everything but name.

Let’s be honest, how many unionists/loyalists really believe Boris Johnson’s reaction to the High Court ruling will be to charge to their side? Hands up. Yep, no one believes it. And how many believe he will prioritise unionist interests over the interests of the pro-Brexit voters who gave him his majority in England in December 2019? Again, no one.

When one community has a problem in NI then all communities have a problem. That’s how we do political business here. Stability isn’t built on one side feeling happy. It isn’t even built on a majority feeling happy. It depends on both party-political unionist/nationalist communities buying into something. That’s not happening right now: and a ‘you reap what you sow’ response to unionism from some quarters isn’t helping, either.