Leading constitutional expert backs DUP objections to the Protocol

Prof Vernon Bogdanor  

Let us is suspend for a moment blaming the DUP for helping to saddle us with customs forms and phytosanitary checks at Belfast and Larne. Let us praise the SDLP and Alliance for looking for the bright side, at the  competitive  advantage NI business can enjoy NI to EU and GB if only the checks  GB to NI are drastically reduced. Mitigation may yet be the name of the game. But now a thunderbolt has been hurled at the protocol itself by the doyen of UK’s constitutional experts, Vernon Bogdanor. No Tory or Labour supporter, he is rigorously independent and well known to me. And rather to my surprise, he has just checked out unionism’s list of objections.

Were Britain to agree a trade deal with the United States, America would demand access for its food products. But the EU might not admit, for example, hormone-treated beef. So the deal would have to be with Great Britain, not Northern Ireland.  

These arrangements arguably breach the 1800 Act of Union which provides for Northern Ireland “the same privileges” and “encouragements” in trade as the rest of the UK.

Even worse, the BBC’s Northern Ireland editor has received a package from England with a customs label attached. Sending parcels from one part of the UK to another has become an international transaction.

Gove has pleaded for flexibility with EU commissioner Maros Sefcovic, and seeks a further grace period for supermarkets, parcel transactions and medicines. But that would not resolve the fundamental problem, which is constitutional not economic.

Would any EU member state accept a regulatory border and, in effect, a customs border within its own territory. Would France accept a border cutting off Alsace-Lorraine? Would Italy accept a border cutting off the Alto Adige? The protocol, moreover, was agreed without Northern Ireland’s consent, a breach of the spirit of the Belfast Agreement.

Northern Ireland is required to accept EU regulatory rules but without a vote on what they are hey are – regulation without representation. The province’s interests in the EU will no doubt be represented by Ireland but that would also be a breach of the spirit of the Belfast Agreement, which did not provide for joint authority in Northern Ireland let alone joint sovereignty.

The protocol, however, cannot simply be abandoned. It is part of the Withdrawal Agreement, which Britain signed and ratified, while to invoke Article 16 providing for unilateral but temporary suspension would merely paper over the cracks.

But there is an escape route. Boris Johnson insisted that the Northern Ireland Assembly be allowed to vote on the protocol in 2024. Assembly elections are due in 2022. They may well prove to be a referendum on the protocol. Since hostility to it is widely felt across the province, there may be a majority to reject it. In that case, the Assembly could insist on bringing forward the vote to 2022.

Sadly, Brexit resurrects the issue of sovereignty, an existential matter. Either the regulatory border is in the Irish Sea, as nationalists want, or it is on the island of Ireland, which Unionists want, and should also be what a Unionist government at Westminster ought to want.

But a Unionist government negotiated a nationalist solution. Anything else, some suggest, would be too dangerous since it would lead to a revival of IRA terrorism – a somewhat disreputable argument: accept our solution, or else. But continuing with the protocol could also lead to a revival of terrorism from Unionist militants.

The issue should not be decided on that basis, but on the basis of which solution is fairest to the citizens of Northern Ireland, who are British taxpayers now deprived of their equal citizenship. That fundamental consideration points to a border on the island of Ireland, though checks need not actually take place on the border. It would be less onerous to administer than checks in the Irish Sea since Northern Ireland’s trade with Great Britain is so much greater than its trade with Ireland.

Before the 2016 referendum, both John Major and Tony Blair warned that Brexit would pose problems for Northern Ireland. That was one of the reasons why I supported Remain. But Brexit is yesterday’s argument. Today’s argument is about the cohesion of the kingdom.

Will  Bogdanor’s case  give second wind to the DUP’s demands to scrap  the protocol?   Could  it help  them win a majority in favour  of scrapping it in anm Assembly vote as early as next year? Before the New Year, voting trends suggest that  they were set to lose by the simple majority set by the protocol agreed between UKG and the EU.  Which is why some of them argued that the dice was loaded against them.

Bogdanor reverts  to the old derided solution of checks not on but near the land border, as between Norway and Sweden or as recommended by the European  Research Group of Tory MPs during the backstop  crisis that did for Theresa May. I can hear the groans of objections from here. The very idea is declared anathema by the EU, the  US government  and all nationalists north and south. Bogdanor doesn’t pretend to be  an expert on technological solutions but he calls invoking the spectre  of dissident attacks on the border “disreputable.”

But if the Assembly were to vote against the protocol arrangements which all agree they have the right to do according to the protocol, what is the alternative? The truth is all sides apart from unionists are gambling on rejection of the unionist demands and are pinning their hopes on agreed mitigation. Boris Johnson may have betrayed them, but they can still tickle his conscience. In answer to a self righteous Ian Paisley, he recalled meting those  Wrightbus workers in Ballymena.


Will you use, if necessary, your parliamentary majority? Will you legislate, if necessary, to remove the impediments to trade in Northern Ireland? Will you be a man of your word and allow businessmen in my constituency to bin the unnecessary documentation that you told us we could bin? Prime Minister, be the Unionist we need you to be.

The Prime Minister

I utterly share the hon. Gentleman’s frustration about the way in which the EU, particularly the EU Commission, temporarily seemed to use the protocol in such a way as to impose a border, contrary to the spirit of the Good Friday agreement—contrary to the letter of the Good Friday agreement. We will do everything we need to do, whether legislatively or indeed by invoking article 16 of the protocol, to ensure that there is no barrier down the Irish sea and that the hon. Gentleman’s business constituents, some of whom I know very well and admire very much, can continue to do business, unfettered, between Northern Ireland and the rest of this country.

photo: Jewish Chronicle






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