In the High Court of Northern Ireland today (15 December 2022) Mr Justice Colton, a former SDLP election candidate prior to becoming a Judge, delivered a constitutionally significant ruling which laid bare the pernicious impact of the Protocol.
I put the matter no higher than saying that given the judicial draw, there were few within unionism in Northern Ireland who believed that the decision would come out in any way other than subtly hostile to the unionist cause.
However, the ruling does provide a sobering overview of the true constitutional impact of the Protocol. It is a judgment the Government would rather those who value the Union did not read; that way they could continue surreptitiously dismantling the UK as a unitary state without (they think) anyone realising before it is too late.
The relevant regulations regarding the Protocol state that checks are to be carried out at the entry point into the European Union. Astonishingly the Government argued, and the court accepted, that for the purposes of the regulations, where it says ‘United Kingdom’ this is to be interpreted as meaning ‘Great Britain’, with Northern Ireland being viewed as part of the European Union, and thus the entry point into that entity.
In the latest deceptive manoeuvre from the Government, they asked the court to simply apply this interpretation through the concept of ‘purposive interpretation’ (which really means reading plain words as meaning something other than they say for political purposes). The court willingly obliged.
Indeed, Colton J went further and stated that due to the Protocol, “the UK is no longer a unitary state”. This is the constitutional destruction inflicted by the Protocol, which has already been held to subjugate the Act of Union, which- as a matter of law- is the Union.
On this point, Colton J is probably intellectually honest about the true impact of the Protocol. He has said what the Government were too cowardly to face up to; namely that they have carved Northern Ireland out of the Union, and done so whilst pretending they were doing no such thing.
There may be (and are) many criticisms to make of Justice Colton’s judgment and the seemingly overtly political tone and objective-driven conclusions, but no one can say he was anything other than brutally honest about the constitutional impact of the Protocol.
In that regard, Justice Colton has served unionism well. His judgment is a moral and political win for unionism; it sets out in explicit terms the true nature of the Protocol, not that anyone should ever have doubted its wicked intent.
The Government stands condemned. Their words are worthless, the practical implications of what they have done to the Union are clear for all to see in black and white within the relevant judgment. If they truly care about the Union, then the only solution is the complete removal of the Protocol and full restoration of Northern Ireland to our rightful place within the United Kingdom.
There is no other sovereign Government in the world that would willingly surrender part of its territory to a foreign power, and indeed offer to use domestic law to effect the subjugation. If ever there was a humiliating surrender, this is it.
And they would have got away with it if not for the unionist community in Northern Ireland lighting a flame of resistance which burns brighter by the day. The Government, the EU, the Irish Government, and nationalism thought they could have both the Protocol and power sharing. They can’t.
The price of power-sharing for unionism in Northern Ireland is to accept the subjugation of the Union. That is a price no unionist will ever pay, or should ever have paid.
So, whilst it may be said unionism lost the legal battle, we certainly won the political one. You could not pay for material as politically potent as the content of the relevant judgment. If the true Union-wrecking impact of the Protocol doesn’t infuriate all those who value the Union, then nothing will.
There has been consistent gaslighting of unionism as we are repeatedly told by some nationalist commentators, and others such as Simon Hoare the Chairman (somehow) of the NI Affairs Committee, that the Protocol “is not a constitutional issue”.
If the subjugation of the Acts of Union and the carving of Northern Ireland out of the UK, instead to be treated as part of a foreign entity, is not a constitutional issue, what is?