Dan Boucher: UK government should drop upcoming Stormont vote on protocol and opt for the alternative solution

Crawford is absolutely correct that up until this point the remit of Stormont has been limited in the sense that its governance decisions have been kept out of some key areas, reserved matters. This was the case, first, in relation to the Parliament of Northern Ireland from 1921 – 1972, through Sections 4 and 5 of the Government of Ireland Act 1920, and now in relation to the Northern Ireland Assembly, through Section 6 of the Northern Ireland Act 1998.

Crawford is also absolutely right that provision is made for decision making in relation to Northern Ireland - some of it very controversial – on a majority basis. He mentions referenda but could have also mentioned Westminster decision-making with respect to Northern Ireland and, of course, majority voting happens all the time at Stormont on issues that don’t require cross-community consent.

My point, however, was not that majority voting does not happen in relation to Northern Ireland, simply that it has not been permitted on matters of deep controversy at Stormont since 1972.

These Stormont limitations, both in relation to the scope of governance decisions and majority voting, are intentional. They are both informed by the same concern, namely that Northern Ireland is a divided society, and legislatures of divided societies need to be hedged in by protections that are not necessary to the same degree in societies informed by a more united sense of political nationhood.

Far from constituting impediments, liberation from which should be celebrated, they are carefully crafted safeguards that should themselves be protected.

The determination that Stormont should not be asked to make deeply controversial existential decisions, such as changing the basis for the relationship between the UK and Republic of Ireland, was the result of a deliberate attempt to help protect the Northern Ireland legislature, which has the delicate task of representing a divided people, from being drawn in to taking sides in a controversy that might impair its legitimacy as a representative body for all the people.

A similar rationale lay behind the decision on majority voting. Legislatures are understood as organs of the political nation. In this context, if a vote thrusts you into the minority, you are not completely alienated by the decision because you remain part of the political nation in the name of which the legislature operates.

In Northern Ireland, though, we are not all bound by a common sense of national belonging, in and through which we can process our differences, and from 1972, it was determined that majority voting on matters of remaining controversy is not acceptable if either community objects. Since 1998 this protection has been applied through the cross-community consent mechanisms.

In this context the proposed Protocol vote, rather than being something to welcome, is the cause of great concern because the design of the vote knocks away these two critical protections upon which Northern Ireland has long depended, and in a context where Northern Ireland remains divided.

In the first instance, the vote pertains to a matter that is so far reaching that it falls outside the scope of Section 6 of the 1998 Act, and indeed it would have fallen outside the remit of Sections 4 and 5 of the 1920 Act. The effect of MLAs voting for the motion that the Secretary of State sent to the Assembly on 31 October is threefold.

First, to approve the effective removal of Northern Ireland, in large part, from the UK single market for goods and its insertion into the separate single market for goods of the Republic of Ireland/EU, creating an all-island economy (upon which an all-island state would depend).

Second, to approve that Northern Ireland be subject to all-island laws, along with the Republic, in 300 areas for the purpose of governing that market - laws made by the Republic of Ireland and the 26 other EU states and not by the UK or even just the Northern Ireland part of the UK.

Third, to approve that their constituents should be effectively disenfranchised in the making of the laws to which they will be subject in those 300 different areas for the next six and eight years.

(In any other modern state, a decision of this magnitude, if countenanced, would not go to the people’s representative body but to the people themselves in a referendum.)

In the second instance, the vote is being sent to Stormont, the legislature of a divided society (wherein the challenges related to that division are such that for 103 years it has not been permitted to venture onto such controversial territory and, for 52 years, majority voting on matters of remaining controversy have been prohibited) for the purpose of holding a majority vote!

This is utterly extraordinary, especially when one reflects on how for 45 years from 1972, when unionist parties held the Stormont majority, they were expected to not press their advantage in majority voting on matters of controversy, and yet as soon as they lose it, this previously unbending imperative suddenly becomes eminently dispensable and for the most controversial proposition to come before the Assembly/Parliament of Northern Ireland in over one hundred years!!

What is the government thinking? Were they so desperate to submit to the EU demands that they forgot how and why Stormont works?

Rather than having any Stormont vote on this, the UK government should opt for the solution that does not disenfranchise anyone, Mutual Enforcement and the Allister Bill.

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Dan Boucher is a former Director of Policy and Research for the DUP, and now aide to the leader of the TUV Jim Allister MP