The following article by Dr Dan Boucher is published in today’s News Letter.
As the summer begins to recede, and the approach of the autumn comes into view, it is important to remember that before the end of the year (unless there is a change in the law) we in Northern Ireland will be confronted by an event the constitutional enormity of which it is hard to overstate.
And, no, I am not talking about the arrival of the new Green Lane customs border dividing us from the rest of the UK on 1 October – though that is also a huge concern.
The Parliament of Northern Ireland operated between 1921 and 1972 on the basis of simple majority voting but by 1972 the treatment of the nationalist minority by this ‘majoritarian’ approach was believed to be implicated in the underlying grievance that in 1969 had resulted in the outbreak of the Troubles.
In this context, the UK Government intervened to suspend Stormont. Ever since then it has been an unchanging constitutional convention of Stormont that proposals regarded by either community as an existential threat must not be considered on a majoritarian basis.
To this end, rather than inaugurating a new convention, the Good Friday Agreement ‘cross-community consent’ principle merely recognised and built on the older pre-existing convention prohibiting majority decision making at Stormont on matters of controversy that had already been in place since 1972.
When the EU presented the Northern Ireland Protocol, the UK Government said it should only apply with the approval of Stormont.
Notwithstanding the fact that their proposal involved disenfranchising NI citizens in relation to 300 areas of law, the EU was concerned and only agreed in the context to two very unusual provisions.
The first was that rather than voting on whether to approve the effective renunciation of constituent’s rights to be represented in the making of laws to which we are subject in 300 areas before the removal of those rights, the vote should happen four years after the fact, seeking a mandate for their renunciation for the next 4 years, but not the first.
The second was that it must be a majority vote. Brussels had become aware that because unionists regard the Protocol as an existential threat, they would reject it and, in the context of cross community consent, the so-called consent motion would likely fail. This was not acceptable to the EU and so they argued that, regardless of the sensitivities of Northern Ireland’s history, and their apparent commitment to the Good Friday Agreement, the consent vote must take place on the basis of a simple majority, in the context of which its passage seemed guaranteed, courtesy of expected Sinn Fein, SDLP and Alliance support.
In the end the only way in which the Government could accommodate this demand was by developing the completely disingenuous argument that the Good Friday Agreement only relates to some Stormont decisions.
Notwithstanding the domestic nature of the substance of decision-making to be surrendered to the EU, the Government sought to use the fact that the EU is foreign to reconstitute the competences in question into ‘excepted matters’, beyond the remit of the Assembly, and the requirements of the Good Friday Agreement, even as UK law contrarily makes this a matter for Stormont by requiring an Assembly vote on it. This is absurd.
In the first instance, there is nothing in the treaty limiting the ban on majority voting on matters of deep controversy to certain classes of Stormont decision-making.
In the second instance, the prohibition on majoritarianism in the Good Friday Agreement has to be read as an affirmation of the convention prohibiting majoritarianism which goes back, not to 1998, but 1972.
In this context, it does not matter what the decision is about. What matters is that it pertains to a proposal that one community regards as constituting an existential threat.
In the third instance, we must recognise that even during the years of Stormont majoritarianism from 1921 to 72, Northern Ireland was always protected by the limits of its responsibilities. Far from granting a license to dispense with the prohibition of majoritarianism, the effective extension of the role of Stormont into areas of greater controversy obviously makes the protection afforded by that prohibition more and not less important.
The proposed forced majoritarian vote is without doubt the most controversial proposition to have ever been placed before Stormont in its 103 year history.
First, it involves asking MLAs to renounce the rights of their constituents to be represented in the legislature making of the laws to which they will be subject in some 300 areas for 6 to 8 years.
Second, in so-doing it asks MLAs to agree to the transfer of 300 areas of law making from the UK to the EU and therein the Republic of Ireland and 26 other sovereign states, and when the effect is to create an all island economy, a vital prerequisite of the break-up of the United Kingdom of Great Britain and Northern Ireland and incorporation of Northern Ireland into the Republic.
Lest anyone should seek to minimise the significance of this vote by focusing in on the fact that it is just one decision, we must remember that if it is acceptable to make the most controversial decision to ever come to Stormont on a majoritarian basis, what possible justification can exist for arguing that less controversial decisions be made on the basis of cross-community consent? This EU imposition, set out in Article 18 of the Windsor Framework, does not just remove the argument for cross community consent in one narrow area. It inevitably pulls the rug out from beneath it in general and thereby undermines the Good Friday Agreement, placing the future governance of Northern Ireland in jeopardy.
Dr Dan Boucher is the DUP’s former director of policy and research and a member of the TUV.