There has been increasing speculation that a ‘deal’ between the UK and EU is on the horizon in relation to the Protocol.
This arrangement - which surrendered UK sovereignty in key areas over Northern Ireland - has had the effect of “subjugating” Northern Ireland’s place within the United Kingdom, and requires that Northern Ireland be treated as the entry point into (and thus part of) EU territory.
As put by the Government’s senior counsel before the Supreme Court (seemingly blissfully unaware of the incendiary nature of the constitutional damage he was casually outlining), Northern Ireland’s guaranteed rights as part of the United Kingdom have been “disapplied” for so long as the Protocol persists.
The same senior counsel further argued before the High Court in the case of Rooney and JR181 (3) that the United Kingdom “was no longer a unitary state” because of the Protocol, and that therefore when you enter Northern Ireland, you in practice enter EU territory (see Article 64 (1) of Regulation 2017/925 which applies by virtue of Annex 2 of the Protocol). These arguments were happily adopted by Colton J, and simply copy and pasted into the relevant judgment.
There can be no credible dispute that the Protocol is fundamentally un-reformable. There can be no solutions within the framework of the Protocol, because the foundations upon which it rests are, and always will be, constitutionally offensive.
It follows therefore that the suggested solutions being floated in the public arena- largely as kite flying- which in fact appear to be more akin to the EU’s proposals of October 2021, will be insufficient to resolve the core issues.
A green lane which requires those moving goods from GB to NI to ‘opt in’ or sign up to a trusted trader scheme, or which involves any form of customs paperwork or checks, is not a green lane at all. It is, at best, an amber lane with some bollards along the route to slow you down.
Article 6 of the Acts of Union requires that in the framework of the economic component of our precious Union, all citizens of the United Kingdom are to be on an equal footing. If, for example, trade from Manchester to Belfast requires additional processes than that from Manchester to Glasgow, then it can not be said with any degree of intellectual credibility that all constituent parts of the United Kingdom are on an equal footing in matters of trade.
Accordingly, such a solution would not free the Acts of Union from it’s present “subjugation”, and as such applying the DUP’s seven key tests, it would fall at the very first hurdle.
The core principles, on which there can be no compromise, are set out clearly in the DUP’s seven key tests, and were further expanded upon in the Centre for the Union report published in January 2023.
Put simply; (1) EU law must end. The laws which apply to Northern Ireland must be made by Parliament and/or the NI Assembly, with democratic accountability and input. Northern Ireland must be firmly- in both symbolism and substance- within the UK regulatory regime; (2) legal jurisdiction over Northern Ireland must rest finally with the UK Supreme Court; (3) there can be no checks or processes for goods moving internally within the United Kingdom which did not apply prior to leaving the EU, and/or which differ in any way from that which is applicable to moving goods from one part of GB to another (i.e, Manchester to Glasgow).
These key principles are not new, and have been the shared position of anti-Protocol unionism for a significant period of time. They should be well understood.
There is no compromise to be made on the part of unionism. The Protocol is the vehicle by which the EU has seized control over territory over which they have no right to occupy, and accordingly to ‘compromise’- with the starting point being the current status quo of the Protocol- would be to reward the initial wrong inflicted upon Northern Ireland, and the United Kingdom more generally.
If a burglar breaks into your home and plunders your most precious possessions, no one would seriously suggest that it would be a good deal to ‘negotiate’ with the plunderer from the starting point that they now possess all your possessions, and they are entitled to expect you to compromise in order to get some, but not all, of your property back.
The Protocol is a Union-subjugating tool designed to incrementally wedge Northern Ireland out of the United Kingdom, via the pathway of dividing NI from GB and instead leaving us under the jackboot of the EU in an economic United Ireland.
In this respect, it is in fact entirely at one with the objective of the Belfast Agreement, which by design created a ‘process’ by which Northern Ireland would be ushered out of the United Kingdom and into a United Ireland.
Unionism has come far, but we have much further still to travel. The actions of anti-Protocol unionism, which has consistently and clearly stated that the choice is a binary one of power-sharing or the Protocol, has forced the EU, Irish Government and even our own UK Government back to the table.
But why stop now?
Keep going. This is our last best chance to safeguard the Union. There can be no compromise on the constitutional integrity of the United Kingdom, and Northern Ireland’s place therein.
Put simply: until the Protocol is removed, there will never again be power-sharing in Northern Ireland.
Now is not the time to waiver or consider half-baked ‘deals’. It is time for unionism to dig in even harder, and stay the course. Stand firm.
Incredibly, I find myself finishing by quoting with approval Peter Robinson, “We haven’t come this far, to only come this far.”