The latest ruling from the Supreme Court should surprise no-one. The justices affirmed previous precedent and confirmed what was obvious: the Protocol was lawfully implemented.
Since the ruling, there have been calls to ditch the Good Friday Agreement. Anti- Agreement unionists say the consent principle isn’t worth the paper it’s written on because it didn’t stop the Protocol
If the Agreement should go because it’s useless, what does that say about the Act of Union?
In its ruling, the Supreme Court proceeded on the basis that there is a conflict between the Protocol and the Act of Union. It found that the Act of Union had been modified in part, those modified sections suspended. The suspension is lawful because of Parliamentary sovereignty.
Northern Ireland’s relationship with Britain has changed. The harsh reality for unionists is this: the Act of Union did not protect them. It doesn’t mirror the US Constitution nor have an elevated status in law above other constitutional statutes in the UK.
The UK’s constitution, and the union, is a patchwork of legislation, case law and convention. There is nothing to stop Northern Ireland’s relationship with Britain being changed in future.
The Protocol has always been a political problem. With the Agreement, we thought we would have control over our futures. Brexit and the Protocol have been implemented above our heads and without much thought to our political situation.
The government has given the Assembly the opportunity to reject the Protocol but has removed the ability to call a cross community vote. A majoritarian vote is straight forward but I’m uncomfortable with the fact that the rules have been changed. The government knows the Protocol wouldn’t survive a petition of concern. It has chosen to push ahead regardless. That sets a worrying precedent for the future.
The Agreement can and will be changed/disregarded by the government when it sees fit. I suspect many nationalists and republicans, who’ve never had much faith in the British government, are muttering, “I told you so,” under their breaths.
The past five years have highlighted the inherit weaknesses in the Agreement. The document means something different to different groups in society. It is open to interpretation. It is easy to mould into a weapon. It hasn’t, so far, paved the way to reconciliation.
In calling for the Agreement to be ditched, however, unionists are throwing the baby out with the bath water. Unlike the Act of Union, there are specific safeguards for unionists in Northern Ireland.
Which part of the Agreement are unionists willing to toss out the window? A guaranteed seat in government? What about the Treaty provisions which affirm Northern Ireland’s existence? The Republic’s commitment to remove Articles 2 and 3?
The principle of consent may be too weak for some unionists but it prevents Northern Ireland being taken out of the union without a democratic vote.
Of course, as we get closer to the 25th anniversary of the Agreement, it’s obvious that serious reform is needed. We need to be careful not to look at the document with an uncritical lens.
To ditch the Agreement, however, would be an act of self harm. Unionism is in political decline. It will not get a better deal.
Some unionists still believe that they will always hold the balance of power in Northern Ireland. In their arrogance, they can’t see a future that isn’t painted in their image. They refuse to acknowledge that the political landscape has changed.
The cynic in me thinks a section of unionism wants to ditch the Agreement to deny the legitimacy of a future border poll. Last year, Ian Paisley jnr introduced a bill in Parliament to require a supermajority in any future referendum.
Alex Kane believes unionism is about to face a battle between devolutionists and direct rulers. Why anyone would want to hand power to the people who implemented the Protocol is beyond me. Under the Tories, direct rule is self flagellation on a grand scale.
This feels like a significant moment. The UK’s economy is about to enter a long period of stagnation. Living standards are falling.The NHS has collapsed. Northern Ireland has no government. How can unionists sell this?
Unionist actions over the next year will have long term ramifications. A section of unionism seems committed to a path of self destruction. On their own heads, be it.
Sarah is a writer and lawyer from Belfast.
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