The NI Protocol lacks democratic legitimacy and must be removed

No longer can anyone stand at the Despatch Box and argue that the Protocol is protecting peace and stability in Northern Ireland. The people have spoken. Every Unionist candidate standing in the election opposed the Protocol. Forty per cent of all votes cast were explicitly for anti-Protocol parties – 360,000 in total. Northern Ireland’s peace process has only ever moved forward with Unionist and nationalist consent, and our political institutions depend on it. Yet not a single Unionist supports the Protocol.

It is the Protocol – not Brexit – that has created a border in the Irish Sea. As such it represents an existential threat to the future of our place in the Union. No Conservative and Unionist government can stand by and watch as the pro-union people of Northern Ireland diverge further and further from the rest of the United Kingdom. The checks on the Irish Sea border are the symptom of the underlying problem, that Northern Ireland is subject to a different set of laws imposed by a foreign entity without any say by any elected representative of its people.

Importantly, only a fraction of the Protocol is presently being imposed. When it is fully implemented and the rest of the UK plows its own furrow, Northern Ireland will become so far removed from Great Britain that Westminster’s levers over our health services, Covid response or even financial assistance for the economy will become very limited.

But this will not just affect Northern Ireland; the people of Great Britain will also feel the impact. Just weeks ago animal welfare protections had to be sheltered by Defra because the NI Protocol would have blocked them from being applied to the entire UK. It has also limited action by Westminster to ban ineffective Covid testing kits. It is absurd that our government would cede the right to have a say on vast swathes of the laws governing our economy, which affect the Northern Irish people so directly.

The DUP is seeking the restoration of democratic decision-making to the NI Assembly but there must be a firm foundation, which means replacing the democratic deficit created by the Protocol. Beyond costing our economy £100,000 per hour, it has driven up haulage costs and placed a border between us and our most important trading partner. It has jeopardized our medicine supply during a pandemic.

While a year ago Brussels was closed to the need for change, we have since convinced many of the merits of our case. The Government knows the Protocol does not enjoy Unionist support and Brussels recognizes that it has cast a long shadow over Northern Ireland’s political arrangements.

Now is the time for the Government to act. The Irish Sea border urgently needs to go, with the Protocol replaced by arrangements that restore our place within the UK internal market. We will judge any new arrangements against our seven tests to determine whether they respect NI’s position as part of the UK. Any new arrangements must, firstly, fulfill Article 6 of the Articles of Union, which requires that everyone in the UK is entitled to the same privileges. It must, secondly and thirdly, avoid any diversion of trade, and any border in the Irish Sea. It must give the people of Northern Ireland a say in the making of the laws which govern them.

Checks must no longer be applied to goods going from Northern Ireland to Great Britain or from Great Britain to Northern Ireland. It must ensure that no new regulatory barriers can develop between Northern Ireland and the rest of the UK, unless agreed by the Northern Ireland Executive and Assembly. Finally, it must reserve the letter and spirit of Northern Ireland’s constitutional guarantee requiring the consent of a majority of the people of Northern Ireland for any diminution in its status within the United Kingdom.

But it is not enough for Unionists to complain. We must pursue a dual strategy to prevent the salami slicing of our constitutional position. That means legislative change which provides meaningful protection for the union. Given the recent judgment from the Belfast Court of Appeal, which has shown the fragility of the Belfast/Good Friday Agreement’s much-vaunted consent principle, we must now push for the guarantees we were promised in 1998 to be enshrined in legislation.

I would suggest an additional provision be added to the Northern Ireland Act 1998, establishing that any change to Northern Ireland’s constitutional status within the UK, from 1998 onwards, must require the consent of a majority of the people of Northern Ireland – either through a referendum , or a cross-community vote of the NI Assembly.

Such a provision would be entirely consistent with the involvement of the Government’s publicly stated position in relation to Northern Ireland and gives primacy to its people. No one who believes in the democratic process could plausibly oppose it. After the election and as a way of providing greater confidence to the people of NI, I will be pressing for the Government to take forward such an amendment. Our ultimate protection will not be found in constitutions but in the will of the people. That is why we must move in the right direction by lifting the shadow of the Protocol and freeing ourselves to focus on the issues that matter.

Sir Jeffrey Donaldson is leader of the Democratic Unionist Party

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