Dan Boucher: Unionist parties must call for Good Friday Agreement consent protection to be properly translated into domestic law

Many seem to have responded to the Supreme Court judgement (February 8, 2023) as if it says the protocol is entirely consistent with the agreement, but it says no such thing.

The BGFA is a treaty and as such part of international law. However, as the judgement pointed out, the requirements of international law are only justiciable in domestic courts if they have been translated into domestic law.

(Click here for Dan Boucher's first essay in this series about the DUP’s rejection of unfettered access to the rest of the UK in favour of keeping unfettered access to ROI/EU, through the chronology of its effective rejection of mutual enforcement. Click here for his second essay in the series on how the Windsor Framework must be exchanged for mutual enforcement as a matter of urgency.)

While the BGFA as a treaty is very clear that: ‘It would be wrong to make any change in the status of Northern Ireland [where the presenting treaty context is the governance of NI moving away from the UK towards greater ROI involvement] save with the consent of a majority of its people’, this international legal requirement has not been given domestic legal expression.

Instead of dealing with ‘any change’, the closest domestic legal provision, Section 1 of Northern Ireland Act 1998, only engages one very specific change, the complete removal of Northern Ireland from the UK and into the Republic of Ireland. The consent provisions of the BGFA thus remain largely unimplemented in UK law.

While not involving the complete transfer of NI from the UK into the Republic, the protocol/Windsor Framework does involve three changes in constitutional status.

First, it means moving NI from being a jurisdiction where everyone can stand for election to make all the laws to which they are subject, to a jurisdiction where, in 300 areas of law, they can no longer do so. Northern Ireland is thus moved from being a full to a partial democracy.

Second, the loss of democratic rights is the result of the transfer of decision making to a foreign Parliament, with NI effectively becoming, to that extent, a colony.

Third, although the referendum leading to the formation of the Northern Ireland Assembly created a body with a domestic decision-making capability, the protocol has transformed it into a wider decision-making body because, as the minister was at pains to point out to Parliament in November 2020, the decision that Stormont is required to make from November 2024 will not be a domestic but a foreign policy decision.

Thus, while the protocol/Windsor Framework may be consistent with domestic legislation, it is plainly not consistent with the consent provision in the GFA. While we can, of course, ignore the Good Friday Agreement because it is only international law, as one of the most famous treaties in the world, whose 25th anniversary was celebrated in style, it must surely be the last treaty to be singled out for that purpose.

Moreover, devolution has only ever been possible since 1999 because both unionists and nationalists agreed to power-sharing, which depended on the security offered by the principle of consent. Now that the court has effectively ruled that Parliament has not translated the full ‘any change’ treaty protection into domestic law, a question arises about whether there is a foundation for unionist engagement in devolution going forward.

Although this is a serious problem, happily it can easily be resolved through the provision of emergency legislation to ensure that the full breadth of the consent protection in the GFA is translated in domestic law, notwithstanding the Windsor Framework.

Given the centrality of the GFA consent principle to future unionist engagement in Stormont, it is extraordinary that the Safeguarding the Union deal revisits the source of the problem, Section 1 of the Northern Ireland Act 1998, without seeking to address its deficiencies.

Specifically, the Windsor Framework (The Constitutional Status of Northern Ireland) Regulations 2024, makes the simple declaration that: ‘the enactments which make provision about the constitutional status of Northern Ireland, the power of the Parliament of the United Kingdom to make laws for Northern Ireland and the vesting of executive power in Northern Ireland include (i) the Northern Ireland Act 1998(5) (section 1 of which relates to the principle of consent).’

It would seem that we are supposed to be comforted by this declaration that Parliament is sovereign over Section 1, but rather than addressing the presenting difficulty this only serves to put it into sharper focus.

The deal tells us that, notwithstanding the fact that Parliament is sovereign, and the fact that the Supreme Court has effectively ruled that the consent provision of the GFA has not been properly translated into Section 1, Parliament is happy to leave unionists to make do without this protection.

The DUP should have insisted on fixing this as a Safeguarding the Union minimum.

Going forward they, together with the UUP, TUV and PUP, should present a united front in calling on the new UK government to introduce emergency legislation to Parliament in order to properly translate the Good Friday Agreement consent protection into domestic law.

Dr Dan Boucher is a former DUP director of policy and research