It is trite to point out that with every day that passes, it is another day in which Northern Ireland remains subjugated as a colony of the EU, trapped and embedded within a de-facto economic united Ireland.
That, on a daily basis, further erodes any basis of unionist support for the Belfast Agreement and power sharing. It is for this reason the Government need to urgently understand what solution is required, and take steps to deliver it.
The subjugation and suspension of the Acts of Union comes about due to the fettering of free trade within the internal UK market, and the continued application of EU law.
The Windsor Framework does not deliver, even via the ‘green lane’, unfettered trade within the UK internal market (GB-NI as well as NI-GB), but rather embeds an Irish Sea customs border by virtue of the requirement that to even access this ‘green lane’, a trader must obtain ‘authorisation’ with the provision of information for “customs purposes” (see Article 9 of the UK-EU joint committee decision 01/203).
In addition, the Framework continues to require all traders and manufacturers in Northern Ireland to be subject to EU law, effectively ensuring citizens in this part of the United Kingdom are left adrift in an economic United Ireland, or as put by Lord Justice McCloskey in Allister et al: “NI belongs more to the EU… than the UK”.
That position is unsustainable, and no self-respecting unionist could ever collaborate in the implementation of such an arrangement. It is of course established that any unionist who took a position in the Northern Ireland Executive would be required- as a matter of law- to implement those Union-subjugating arrangements.
It is for this reason, and due to the complete absence of cross-community consent for the subjugation of the Union, that there is no basis for power sharing until a resolution can be found which commands the support of unionists as well as nationalists.
The issues which have arisen have, of course, additionally exposed a fundamental flaw at the heart of the Belfast Agreement. The principle of consent, in operation, has been shown to be defective and incapable of protecting against anything other than the final formal handover of sovereignty.
Put simply, in relation to Northern Ireland’s place in the Union, you can change everything but the last thing.
That is not the basis upon which those unionists who endorsed the 1998 political settlement, did so. Is it to be seriously suggested that any unionist would have supported the Belfast Agreement had they been told that, in fact, it would entail a process, or at least the ability, to incrementally dismantle the Union (and, if you can hand law-making powers to Brussels, then in theory so too could they be handed to Dublin), and that the principle of consent would have no application other than to the final question.Therefore, any solution which purports to provide a solid basis for restoring power sharing must do two key things. Firstly, it must restore the Acts of Union, and secondly, as set out by Sir Jeffrey Donaldson repeatedly and again as recently as Tuesday at the mutual enforcement launch, the principle of consent must be defined in law in order to properly reflect the constitutional guarantee promised to unionism.
These requirements aren’t new. They were contained within the joint-unionist
declaration of Ulster Day 2021, which everyone other than the UUP has held firm to, and they are plainly set out under the first and seventh of the DUP’s key tests.
In regards restoring the Acts of Union, that has two core requirements: (i) ending the
application of EU law to those trading within the UK internal market; and (ii) removing fetters to trade internally within the UK, which requires the removal of the Irish sea customs border.
The application of EU law is a fundamental flaw which can never be tolerated. The
solution is simple: those trading solely within the UK should be subject to UK law by default, and exporters trading into the EU should be required- on pain of criminal
penalty- to register as EU traders and thus voluntarily assume the obligation to follow
EU law for that purpose. This obligation would then be enforced, as a matter of UK
law.
This concept has as its central theme entitlement, choice and voluntary assuming of obligations.
Those who choose to avail of the entitlement to trade freely with the EU, therefore voluntarily assume the obligations that come as a condition of exercising that entitlement, namely complying with the obligation to follow EU law.
That creates a junction-box, similar to the citizenship arrangements in the Belfast
Agreement, which preserves the entitlement to trade with the EU and to have access to that market, but does not impose upon those who do not trade with the EU the obligation to follow foreign law.
In the Belfast Agreement those who wish to be Irish have this entitlement protected
as a matter of UK law, but this identity is not imposed upon those who are not Irish
and/or who do not wish to avail of this citizenship.
The same political concept should be applied to the operation of EU law, with the
design of technical solutions fitting into the political concept, rather than- as has been
the case with the Protocol and Framework- the other way around.
In order to ensure there is no detriment (such as requiring two supply chains) to
those who trade (from or via NI) both within the UK and export to the EU, then the
UK Government (as envisaged in the Protocol Bill, and to a certain degree within the structure of the Framework) should recognise both UK and EU standards and permit those in NI to chose either of these regulatory regimes, and to be able to trade freely in either case. This is dual regulation.
The policing of the arrangements, in order to avoid infrastructure North-South or
internally within the UK, can be achieved via mutual enforcement.
Therefore combining the aforementioned elements, you arrive at a system which works via (i) the preservation of entitlement to trade freely with the EU, without the imposition of EU law on those who do not wish such access or do not trade with the EU; (ii) dual regulation to ensure no detriment to any trader; (iii) mutual enforcement to police the arrangements in a manner which obviates the need for any infrastructure North-South, or internally within the UK.
This solution respects the identity and rights of unionists and nationalists. Unlike the Protocol, it is not the case that in order to preserve nationalist identity, unionist identity and rights must be sacrificed. It provides a balance whereby both unionists and nationalists could support the arrangements which would plainly respect all identities. How or why would anyone object to such an outcome?
If this solution were to be arrived at, in the manner suggested, it would obviate the need for an Irish Sea border of any sort. And, this is a core requirement of any solution in of itself. At its most basic, the requirement is this: there should be no more onerous requirements for those trading Glasgow to Liverpool vis-à-vis those trading Liverpool to Belfast.
In regards the other central issue, namely the principle of consent, this requires correction in primary legislation. This needs to be achieved either by amending the principle of consent’s operating provision (section 1 (1) of the NI Act 1998) to define (non-exhaustively) that which is encompassed within the meaning of NI remaining part of the UK. This, at a minimum, should specify that this includes the continued application of the Acts of Union, and make clear that there can be no discharge of Executive functions, decision making or power over NI by anyone other than the UK Government and/or (subject to devolution) the NI Executive.
In the absence of both the core issues (Acts of Union and principle of consent) identified in this article being comprehensively addressed in substance, there is simply no basis upon which any self-respecting unionist could credibly support a restoration of power sharing.
It is necessary, and vital, that power sharing operates on the basis of the consent of both communities (and in the absence of that, that the UK Government exercises its sovereign responsibility to govern NI) and this requires a carefully constructed balance and respect for the rights and identity of unionists, nationalists and those who identify as ‘other’.
If the Government are serious about devolution and the restarting of the Belfast Agreement power sharing arrangements, then they ought to realise that the continued subjugation of the Acts of Union, and expecting unionists to unsee what has plainly been seen in relation to the defective nature of the principle of consent, is simply incompatible with that objective.