Naturally all the responses to the British government’s anti-protocol bill have emphasised the plans to enable British ministers to ditch pretty well anything and everything in the protocol they want except three sections, Articles 2, 3 and 11.
These deal with the Common Travel Area, north-south cooperation as detailed in the Good Friday Agreement and the 1998 Northern Ireland Act, and human rights, also included in the GFA and existing pre-protocol. It’s a comprehensive demolition of the international treaty Johnson signed in 2019. We also know that because our current proconsul says it isn’t a breach of international law, so it must be.
However, there’s another insidious aspect to the bill which people haven’t paid much attention to. That is the power to override the consent vote on the protocol at Stormont (even if it’s not sitting) in 2024. Now, on the face of it you might think taking this power is in case the protocol is still operating because the anti-protocol bill has been held up or amended in the Lords, so the British don’t want Stormont to give its consent for another four years ending up with two parallel protocols: the pre- and post-anti-protocol bill protocols if you follow.
You’d be wrong. The reason the British are taking this power to remove the consent vote, which you might remember Johnson claimed was “a big win” in 2019 and a big concession by the EU, is because it’s a simple majority vote: unionists will lose. So we’re left in the unacceptable position that the British are planning to remove Stormont’s power to consent to the protocol because unionist consent to it will not be forthcoming. The Financial Times’s Peter Foster ridicules, “the irony, or is it absurdity of ministers that battled for a consent mechanism handing themselves the powers to neuter that mechanism either before or after it is used.”
However, its neither ironic nor absurd. It’s the outworking of an extreme Conservative interpretation of the protocol.
Despite the fact that their interpretation has been repeatedly defeated in the courts, Conservatives in the European Research Group (ERG) believe the protocol infringes British sovereignty and therefore needs unionist consent. You might remember that under the terms of the GFA cross-community consent is required only in strictly limited circumstances for assembly business, such as the election of a speaker. Otherwise parties can table a petition of concern, something the DUP has tried to twist into a veto. The Good Friday Agreement is quite explicit that unionist consent is only required for constitutional change – in a border poll – not as a veto on any change whatsoever.
In the last couple of years Jeffrey Donaldson has tried to insist falsely that the GFA operates “by consensus”. It doesn’t. It was never intended to, and if it had been the DUP would have blocked everything. In his statements and speeches Donaldson has recently been playing up and extending ERG demands for cross-community consent. Writing in the extremist Unionist Voice on March 22 he said: “Any change to Northern Ireland’s constitutional status within the United Kingdom should require the consent of a majority of the people of Northern Ireland voting in a poll held for that purpose or should be subject to a cross community vote of the Northern Ireland Assembly.” What?? This despite the clear provision in the GFA for a simple majority. Guess which he prefers?
It’s glaringly obvious that as unionism slips further into minority status Donaldson and others are trying to move the goalposts. So far the ERG in their archaic, nativist view of sovereignty, have been successfully co-opted to such an extent that they believe in cross-community support for everything as an article of faith. It’s become a mantra even though it has no basis in law or practice, but then that never bothered the ERG.
The Irish Sea border is one thing, insidiously restoring a unionist veto is another.
