Jamie Bryson: Modifying the Irish Sea border is not enough, it must be scrapped entirely

The Northern Ireland Protocol is fundamentally riddled with constitutional frailties which are so entrenched they are incapable of being remedied by anything other than the quashing of the protocol in its entirety.

Thursday, 27th May 2021, 1:26 pm
Updated Thursday, 27th May 2021, 1:33 pm
The incoming DUP leader, Edwin Poots, right, and deputy, Paula Bradley. Jamie Bryson writes: "There is an onus on the new DUP leadership to set the tone early; the Irish government need to understand they will be dealing with a more robust form of unionism" Photo by Kelvin Boyes / Press Eye

To quote the great US Supreme Court Justice Antonin Scalia; this wolf comes as a wolf.

With expert clarity and precision, Northern Ireland’s former Attorney General John Larkin QC cut to the heart of the matter with his arguments in the High Court challenge to the protocol.

It can be distilled as this; does the protections for NI’s constitutional status within Section 1 of the Northern Ireland Act 1998 (giving effect to the Belfast Agreement) protect the substance of the Union, or merely the symbolism?

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If — as with the protocol — the power to make laws over Northern Ireland can be surrendered to a foreign power, in this instance the EU, without infringing the apparent protections within Section 1 of the 1998 Act, then the logic is that such powers could equally be handed to Dublin, so long as there was a symbolic tie that still linked NI to the UK.

Moreover, as expertly set out in this newspaper last week by Ben Habib (‘In a new low, Boris is claiming the Act of Union no longer exists,’ May 20), the British government in the High Court challenge to the NI Protocol argued that the very foundational stone of the Union — the Act of Union — was subject to implied repeal and superseded by the protocol.

That is unarguably a change to the constitutional status of Northern Ireland.

If section 1 of the 1998 Act is merely symbolic in so far as it merely exists to protect against the last lowering of the Union flag from Hillsborough Castle, with no remedy to protect the very substance of the Union from the kind of constitutional vandalism embarked upon by the government, then each reader may wish meditate on whether the Belfast Agreement was in fact merely a deceptive snare for unionism.

There has been a concerning linguistic shift in some quarters with suggestions the protocol could be “significantly changed”, “amended” or otherwise altered. This is sheer folly; it is not possible to remedy a fundamental breach of the Act of Union and the de-facto surrender of sovereignty to EU lawmakers by amending or changing the protocol.

It is fundamentally based on two key premises;

(1) that NI is to be subjected to the influence and coercion of a foreign power in the form of EU law making (in effect taxation without representation) and;

(2) that NI is to be treated as a ‘place apart’, partitioned from the rest of the United Kingdom.

It matters not whether the practical outworking of those fundamental premises is visible or invisible, they nevertheless have the same constitutional implications.

In resisting the protocol politically, it is imperative that the unionist and loyalist community collectively unites around the key message that the protocol is beyond reform.

There must be no ambiguity, fudge or acceptance of the ludicrous notion that changes would make it constitutionally acceptable. No amount of pragmatism should override this fundamental principle.

Genuine political resistance to the protocol must inevitably include a willingness to collapse the institutions.

Whilst beyond the scope of this piece, it is trite to point out that if such a willingness is not there, then any talk of genuinely resisting the protocol is hollow.

In the same vein, it is the height of absurdity for any unionist to even consider continuing North-South bodies whilst NI’s place within the UK is in substance vandalised.

It seems to me that Dublin has not received the message that it will never be business as usual whilst the protocol remains; a step change in the tone adopted towards Dublin is plainly necessary.

There is an onus on the new DUP leadership to set this tone early; the Irish government need to understand they will be dealing with a more robust form of unionism.

Similarly, unionism faces more demands from nationalism for the implementation of pro-nationalist parts of New Decade New Approach (‘NDNA’). Notwithstanding the fundamental frailties at the core of NDNA, there is a commitment by the government to legislate to ensure unfettered access to the internal market (which would amount to requiring the removal of the protocol).

Why would unionism deliver on the parts of NDNA favourable to nationalism, when the core commitment to our community is shredded?

Any delivery of NDNA without the removal of the protocol would be an egregious act of political self-harm and would subject the unionist community to a humiliation.

The choice is stark; either continue with a protocol which will lead to the permanent destruction of the Union, or draw a genuine line in the sand, inclusive of remedying the imbalance at the heart of our supposed political settlement in Northern Ireland.

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