The Northern Ireland Protocol radically threatens UK political tradition

In the context of the news that the UK Government is about to move on the Northern Ireland Protocol, Dan Boucher considers the full significance what of the Protocol entails in the light of UK political history.

John Hampden, the celebrated 17th century MP for Wendover and Buckinghamshire, is a towering figure in the development of the British political tradition. During the 1630s he famously refused to pay the Ship Money tax because Charles I imposed it without the approval of Parliament. Hampden's mission was to reassert an existing constitutional convention (stretching back to the reign of Edward III) which Charles was seeking to overturn, namely that one organ of the state, the crown, should not impose taxation without the consent of another organ of the state, Parliament, whose role it was to represent the nation.

The tumultuous events that took place during the 50 years from Hampden's trial in 1638, including Charles' attempt to arrest him and four other MPs in the House of Commons in January 1642, which soon led to the Civil War, right up until the Glorious Revolution of 1688, all served to drive deep into the psyche of our politics the conviction that the UK is a constitutional monarchy wherein Parliament, representing the people, rather than the executive, must have the final say in the passing of legislation.

Given the centrality of the representative principle to the development of statute law in the UK, it is vital, if we are not to betray ourselves and our political tradition, that all the people of the UK are always fully and properly represented in whatever legislatures makes our laws. Indeed, this has gained fuller rather than lesser expression over time with the strengthening of the sense in which Parliament represents the people courtesy of the development of civil rights in the 19th and 20th centuries, giving rise to universal adult suffrage. Since 2021, however, this pivotal tradition of our politics has been substantially sacrificed in one part of the UK, Northern Ireland. This fact, and its implications for the rest of the UK, seems to have largely eluded UK citizens like me living in England, Wales and Scotland.

Rather than presenting a situation in which one organ of the government of our country is seeking to impose legislation without reference to Parliament (as in Hampden's day), the Northern Ireland Protocol presents a far more radical threat to the British political tradition. It involves the making of laws in 300 areas, including an aspect of taxation, for one part of the UK by an outside power of which no portion of the UK is a part and in which no portion of the UK has representation.

The House of Lords European Affairs Sub-Committee on the Protocol has looked at the possibility of trying to make up for this by giving people from Northern Ireland the opportunity to respond to EU consultations on the proposed legislation to which they will be subject. However, if this represents an 'acceptable' solution then we should be able to do away with Parliament in general and content ourselves with government and government consultations. Even that comment, however, fails to do justice to the situation. If Parliament were dispensed with, and we were simply governed by government departments, then there would at least be a greater sense of representative connection arising from the fact that the laws would be made by UK Government departments (in the same way Ship Money was a law made by the national monarch), rather than by the organs of another polity entirely with no claim to in any way to represent us.

The uncomfortable truth is that the Protocol text meets the UN definition of a colony, what it calls a 'Non-Self Governing Territory' NSGT: a jurisdiction that is subject to any measure of government by an external power of which it is not itself a part, and in which it is not represented, without its prior consent. In truth most of the jurisdictions that the UN lists as NSGTs are largely self-governing with usually only matters pertaining to a limited number of areas, often defence and foreign policy, remaining in the hands of the old colonial power, on the strength of which the said territory is deemed to be a colony.

Mindful of this it is deeply shocking that the EU should have ever proposed the Protocol. The act of the EU making laws for Northern Ireland in some 300 areas, when Northern Ireland would have no form of EU representation, would make it, to a significant degree, an EU colony. It is doubly shocking that the EU should have proposed this arrangement, as Article 2 of the Protocol states: "The UK shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union", while the Good Friday Agreement asserts: "The parties affirm their commitment to the mutual respect, civil rights and the religious liberties of everyone in the community". Yet the EU proposes undermining hard-won civil rights, disenfranchising the people of Northern Ireland in relation to law making in some 300 different areas.

Some people in England, Wales or Scotland might be tempted to think that the rest of the UK can ignore these abuses of Northern Ireland, but as a union we are all joined together. Quite apart from the question of moral obligation, turning a blind eye to these absurdities is not possible because the nature of the union is such that we cannot betray Northern Ireland, even if we live in another part of the union, without betraying ourselves and our political tradition. The Protocol is wholly alien to, and manifestly incompatible with, our politics and cannot remain if the UK and its political tradition are to remain.

Thus, if there is a desire to avoid customs checks on the UK – ROI border (something not required by the Good Friday Agreement) then, in order to be compliant with what the Good Friday Agreement actually says, this must be secured in a way that does not introduce a diminution in the civic rights of the people of Northern Ireland. Given this parameter, the Protocol is, for the reasons set out above, a non-starter. Instead, the most obvious way forward must be, as has long been the case, through the introduction of Mutual Enforcement legislation, as proposed by Sir Jonathan Faull, Prof Joseph Weiler, Prof Daniel Sarmiento and the Centre for Brexit Policy Studies. The sooner a legislative vehicle is brought forward for this purpose the better.