Jamie Bryson: The Poots Protocol checks need cross-community executive approval at Stormont

To paraphrase a hero of mine, Maggie Thatcher “if they attack you personally, it means they have not a single political argument left”.

This article seeks to set out clearly (in so far as the complex arguments can be distilled into one article) the legal argument which has been made. It is prudent to do so both to ensure political unionism stays the course, but also to allow the arguments to be subject to public scrutiny.

The Belfast Agreement, transposed into domestic law by the Northern Ireland Act 1998 (‘the 1998 Act’) had several inbuilt cross community protections, with later additions following the St Andrews Agreement in 2006.

For present purposes there are two key provisions in the 1998 Act:

• Section 28A which regulates Executive decision making, and requires “significant or controversial decisions to have executive authority”.

• and section 42 (1) which deals with cross community consent on matters coming before the Assembly.

The latter provision has been controversially disapplied in order to neutralise unionists, this is presently subject to legal challenge in the case brought by Jim Allister et al and was comprehensively and cogently addressed by Baroness Hoey in this newspaper last week (‘I expect that Liz Truss will soon know that the Northern Ireland Protocol must go in its entirety,’ January 6, see link below).

The legal challenge which was brought on behalf of Unionist Voice Policy Studies (UVPS) focused on the section 28A of the 1998 Act provision. It resolves in simple terms to this; the implementation of the protocol — both continuing and any intensification of same — is significant and controversial. That it seems to me is beyond any doubt.

Indeed, in a recent application before the High Court, Mr Justice Scoffield stated that the protocol was a matter of “significant political contention”.

On that footing, it is therefore clear that there is a legal obligation to refer such a decision to the Stormont Executive. Crucially, when a matter falls within the significant, controversial and/or cross cutting category, the relevant minister is deprived of authority to act (see section 28A (10)). Put simply; in the absence of executive approval, there is no authority to implement the protocol.

While it may be said that the point should have been caught earlier, it matters now that the point is caught in time.

In any event the matter has become even clearer as a result of the detailed analysis of the s28A provisions in recent High Court judgments and intimation of a legal challenge by UVPS has alerted the DAERA (Department of Agriculture, Environment and Rural Affairs) minister to the constitutional environment in all its depth. And so, the duty to refer applies.

The next stage is for Minister Poots to bring a paper to the executive. As a pure strategic matter, that paper will have to request permission for the checks to continue, and make clear if this is not forthcoming in a matter of days or weeks, then all implementation will halt.

It is necessary to frame it this way in order to ensure the veto works for rather than against unionism. And, of course, it is the duty of every unionist to vote against the granting of such authority.

There has been a faint (and legally flawed) effort to claim that the protections of section 28A must yield to international obligations (or those imposed by regulations by the UK government). Not so, the NI Act reigns supreme as a constitutional statute. If it is sought to disapply its protections, this must be done expressly by another statute.

It is hard not to be struck by the hypocrisy of those who present themselves as guardians of the Belfast Agreement, raging against unionism simply deploying one of the mechanisms inherent with the agreement. It seems the real position of nationalism is ‘cross community protections for me, but not for thee’.

This strategic approach, which is set out in detail in the UVPS report published yesterday, will wound, but not in of itself defeat the protocol. To really defeat the protocol requires acceptance that for so long as NI remains trapped in the EU single market, that this is incompatible with the Acts of Union. That is the definition of constitutional change. The fact that the principle of consent was seemingly powerless to guard against that fundamental altering of NI’s place in the United Kingdom, raises a more fundamental question for unionism.

The fatal imbalance in the Belfast Agreement (not least in the exposure of the principle of consent as purely symbolic) has now been laid bare. That gaping hole can no longer be concealed.

Therefore, unionism must confront the larger questions about participations in the institutions per se. In my mind, even fixing the protocol is not enough. Unionism must instead take the last best chance to secure a fundamental renegotiation of the Belfast Agreement itself.

• Jamie Bryson is editor of Unionist Voice. He submitted this article to complement one he wrote for that website

• Baroness Hoey: I expect that Liz Truss will soon know that the Northern Ireland Protocol must go in its entirety

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