Much of the confusion and concern around the NI Protocol is due to the fact that some within unionism are confused about the difference between Consent vs Cross-Community Consent, and I suspect others may be deliberately keeping this confusion going.
The Good Friday Agreement guarantees Cross-Community Consent for devolved issues, internal to N. Ireland and controlled by the assembly; this is dealt with in Strand One of the Agreement. This was designed to ensure that our Stormont government would take into account the wishes of all communities when passing laws or running Stormont departments. That is why both Sinn Fein and the DUP are able to freeze Stormont and prevent decisions being made; neither party has a majority within Stormont but they do hold the majority of seats for nationalism and unionism respectively.
However, for issues outside the control of Stormont there is no requirement for cross-community consent. In particular it is made clear that for constitutional issues such the issue of Irish unity consent (not cross-community consent) must be “freely and concurrently given” in both the North and the South of the island of Ireland and “accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”.
Those of us who were adults at that time were very clear on what we were voting for; no Irish unity would happen unless there was a simple majority (50% plus one) for unity.
It would literally be impossible to have cross-community consent for Irish Unity, as once a person decides to support Irish unity they cease to be counted as a unionist; there can never be any unionist support for Irish Unity.
Hence, it has always been clear that there is no requirement for cross community consent before constitutional change is made to N. Ireland, the only requirement is for a 50% plus one majority. There has never been a requirement for cross-community consent for Brexit OR the Brexit Protocol.
This was clear when warnings from moderate unionists like myself were dismissed, we were told that the UK parliament was supreme, we were told that because just 52% across the whole of the UK voted for Brexit then the majority of N. Ireland citizens who opposed Brexit were irrelevant – it was a whole UK decision and Parliament was supreme. Similarly, we now have to face that there is no legal requirement for the replacement for the Protocol to have cross-community consent, it might be desirable but is not legally required.
This confusion over consent was exemplified in a quote in an article from Ben Habib et al in the Newsletter on the day after the Supreme Court ruling:
“Cross-community consent is a cornerstone of the Belfast Agreement. That a major constitutional change could be imposed on Northern Ireland without that consent is not only instructive of government’s attitude to the integrity of the country and its pledges to the British people.”
Unless we clarify this issue it will add to rising tensions as we approach the summer. This might be good for TUV and DUP votes but it will not be good for peace and stability of N. Ireland.
If Jamie and Jim and Ben genuinely believe that the Protocol (in its current or future revised new-deal form) changes the constitution of N. Ireland then they should ask for it to be put to a referendum. Let the people decide.
Arnold is a retired teacher from Belfast.
