Owen Polley: The Northern Ireland Protocol is so serious that it should cause unionists to rethink everything

Have unionist politicians truly grasped the significance of the Northern Ireland Protocol and the High Court’s judgment that the government was within its rights to impose this settlement on Northern Ireland?

Saturday, 21st August 2021, 4:21 pm
Updated Monday, 23rd August 2021, 11:45 am
John Larkin QC told the court: 'If the power to make law for NI can be handed to Brussels, it can just as easily be given to Dublin.' Mr Larkin’s logic is remorseless but unionist parties seem not to have confronted its importance

The biggest parties oppose the Irish Sea border, of course, and say it weakens our links with Great Britain. But have they properly accepted how seriously it undermines unionism’s understanding of the Belfast Agreement, its institutions and our place within the United Kingdom?

Thanks to the High Court case, we know that the protocol repealed important parts of the Act of Union that put Northern Ireland “on the same footing” as the rest of the nation for trade and granted people here the same “privileges” as their counterparts in GB.

In his judgment, Mr Justice Colton acknowledged that the two “jurisdictions” (Northern Ireland and Great Britain) were no longer on the “same footing”.

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This is critical, because a significant section of unionism, including its biggest party at the time, the Ulster Unionist Party, backed the Belfast Agreement in 1998 because it was based on the ‘principle of consent’.

Unionists understood that Northern Ireland would remain an integral part of the UK, with all the consequences and symbolism that entailed, until a majority of voters determined otherwise through a border poll.

It was because of that constitutional guarantee that they were prepared to accept the release of terrorist prisoners and other difficult content, like the disbandment of the RUC.

They knew that these things were unpalatable and even wrong, but decided that moral compromises were necessary to give Northern Ireland a stable, peaceful future within the UK.

The unionist understanding of the ‘principle of consent’ was not unreasonable. In fact, it was the most straightforward and logical way to interpret the agreement.

Nationalists may have used the document repeatedly to make contentious claims, but they relied on references to its ‘spirit’ and ‘context’ rather than the text itself.

These arguments often confused the concepts of sovereignty and identity quite deliberately, in order to portray the consequences of Northern Ireland’s constitutional Britishness as examples of unfair treatment or ‘inequality’ for ‘Irishness’.

In an unguarded speech to fellow republicans, Gerry Adams admitted that Sinn Fein’s perversion of the idea of “equality” was the “Trojan Horse” that nationalists intended to use to “break these bastards” (unionists).

If unionists could rely upon ministers in London to uphold the letter of the agreement and enforce its repercussions, they could largely ignore any wild assertions about its hidden purpose.

Unfortunately, the Brexit negotiations, the protocol and other recent developments suggest that nationalists’ imaginative claims about the document frequently influence the government at least as much as unionists’ literal citations of the text.

During the High Court case, John Larkin QC made his point about consent particularly persuasively. ‘If the power to make law for Northern Ireland can be handed to Brussels,’ he said, ‘it can just as easily be given to the Irish parliament.’

According to his argument, the government’s interpretation of the “principle of consent” protected against only ‘the final removal of the last vestige of (UK) sovereignty’ over the province.

If ministers at Westminster see consent in this way and the courts agree, then every aspect of our place in the United Kingdom can be diluted, eroded or fudged, just so long as Northern Ireland is not formally removed from the state.

Every detail of British sovereignty is up for perpetual renegotiation; liable to be stripped away on the demand of nationalists or at the whim of the government.

The requirement for a border poll deals only with the final formalities.

Mr Larkin’s logic is remorseless and the unionist parties don’t seem to have confronted its importance.

Their casual, piecemeal attitude to opposing the protocol certainly doesn’t reflect the seriousness of his arguments.

Of course, it could be that not enough unionists care about playing a full role in the politics, society and economy of the UK to make this an existential issue.

There are plenty of people whose unionism seems to be focussed more on preventing an all-Ireland state than participating in the United Kingdom. There has always been a type of ‘unionist’ who is quite happy for Northern Ireland to be a ‘place apart’.

If that’s the prevailing view, and the parties accept it, then they should not be shy with the electorate about their intentions.

Maybe, like the Alliance party, they too have come to view Britishness as one identity among others, rather than something that is underpinned by citizenship and our constitutional decision to be part of the United Kingdom.

If that were the case, then a hybrid state, with de facto joint authority, might not be the end of the world for them, so long as it was not formally part of separatist Ireland.

Otherwise, if the High Court’s view is upheld, unionists must come to terms with the fact that the ‘principle of consent’ is no longer an effective defence for Northern Ireland’s place in the Union.

In John Larkin’s words, it covers only the “last vestige” of British sovereignty rather than meaningful participation in the UK.

That surely demands the most rigorous re-examination of all unionism’s basic assumptions.

• Other articles by Polley below:

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