By Jamie Bryson and Ethan Thoburn; foreword by James Bogle BL
This paper is commissioned by the Constitutional Studies Group within the Centre for the Union. Our remit was to produce a paper achieving broadly two objectives: (i) to set out a general overview of the constitutional impact of the Protocol on the United Kingdom of Great Britain and Northern Ireland; (ii) to provide suggested discussion proposals in relation to potential solutions to remedy the constitutional damage and threat to peace and stability caused by the Northern Ireland Protocol.
We determined the best means by which to achieve the objective (ii) was to develop general concepts, without necessarily advancing to the next stage of formulating how the concepts would be technically implemented, however, we have at times tentatively offered suggestions as to legislative routes to implementing some of the suggested solutions.
In our view, the discussion point solutions we have developed are prima facie constitutionally compatible and therefore could potentially provide the basis for workable solutions to the Northern Ireland Protocol which has undoubtedly significantly damaged our precious Union and is a blueprint for the incremental removal of Northern Ireland from the United Kingdom.
We stress that these proposals are discussion points and do not represent our final views, let alone that of the Centre for the Union which has commissioned this paper.
However, it is nevertheless the case that we do strongly feel that there are a number of constitutional principles which are fundamental and upon which there is no room for compromise.
(i) the Acts of Union must be restored and any future arrangements replacing the Protocol must be consistent with that foundational constitutional statute;
(ii) there can be no continued application of EU law in Northern Ireland (dynamic or otherwise), subject to our proposal for a sovereignty procedure which would permit the dynamic incorporation of EU law into our domestic body of law if approved by the Northern Ireland Assembly (in a manner consistent with the 1998 Agreement, thus meaning cross-community safeguards must be a necessary component);
(iii) there can be no checks or controls at all on goods moving and remaining within the United Kingdom, there must be unfettered trade GB-NI and vice versa;
(iv) the European Court of Justice can have no jurisdiction, save for potentially in relation to any EU law adopted post-Exit Day via the suggested sovereignty procedure. The United Kingdom Supreme Court must be the ultimate authority in relation to all parts of the United Kingdom, and whilst that court could seek advisory opinions from the ECJ, it cannot be bound by it. In any dispute in regard to the performance of obligations under the Protocol, the ultimate authority should follow the same mechanism as the Trade and Co-Operation Agreement.
(v) Section 1 of the Northern Ireland Act 1998 must be altered in order to provide adequate protection for Northern Ireland’s constitutional status, which must be taken to encompass the Acts of Union 1800.
In regard to the exploration of potential solutions that we tentatively embark upon in this paper, we nevertheless emphasise the fundamental and unalterable requirement that Northern Ireland’s constitutional place within the United Kingdom must be fully restored.
The discussion points setting out some suggested solutions are premised on the basis that the technical outworking of the same would be constitutionally compatible. If, however, the ultimate technical outworking of the broad concepts we have developed does not satisfy the key tests on sovereignty and Northern Ireland’s constitutional status, then we would without hesitation reject such an outcome.
In regards to terminology, throughout this paper, we alternate between abbreviations and full titles (e.g., ‘NI’ and ‘Northern Ireland’). We do this to avoid excessive repetition of one or the other in the same sentences or paragraphs. In referring to the Belfast Agreement, we use that name, which is what the Agreement is titled, or occasionally ‘the 1998 Agreement’. We do not deploy the politically contrived phrase ‘The Good Friday Agreement’, let alone use the somewhat absurd formulation ‘Belfast/Good Friday Agreement’.
There has been repeated criticism of the unionist community, alleging failure to engage in the debate around potential solutions and/or a reluctance to set out a ‘bottom line’. This criticism is misplaced in so far as the unionist community simply seek the restoration of, and respect for, our place in the Union.
However, notwithstanding that, this paper seeks to provide proposal points for discussion in order to scope out potential frameworks that would be constitutionally acceptable. We sometimes alternate between referring to ‘discussion points’, ‘proposals’ or ‘suggestions’. There is no significance to this alternating terminology. that which we explore has the status of ideas, framed as broad concepts, which are neither final nor formalised (in so far as detailed technical provisions on implementation), and therefore should be viewed no higher than as a basis for discussion, mindful of the fundamental requirement that any solution (whether derived from this paper or otherwise) must be compatible with the Acts of Union, and Northern Ireland’s continued full and integral place in the United Kingdom.