The following article is published in today’s News Letter.
Champions of the Protocol/Windsor Framework, and the break-up of the UK, will want to present the impending forced majority vote, mandated by Article 18 of the Windsor Framework, and which (unless the law is amended) must take place at Stormont before the end of the year (see my earlier article), as an enlightened expression of democracy whereby Stormont is asked to vote for the continuing application of the Windsor Framework.
In order to appreciate why, quite apart from the problems with majoritarianismexplored in my first article, the proposed vote cannot pass as democracy in any recognisable sense of the word, we have to come to terms with three difficulties which I will explore in this article.
The first is that the Protocol was imposed without any Stormont vote and provision was not made for such a voteuntil nearly four years after we in Northern Ireland havestarted having our laws made for us in 300 areas by a countryof which we are not a part and in whose Parliament we haveno representation.
This presents a difficulty both because the provision of Article 18 of the Protocol/Windsor Framework authenticates the sense that Stormont should sanction the imposition of law on Northern Ireland and because it deniesthat right, for some inexplicable reason, until four years after that imposition.
The second problem is that if we seek to try to resolve the above difficulty by arguing that the vote four years after the application of the Protocol (now renamed the Windsor Framework) is for the purpose of providing democratic scrutiny of all the laws imposed in the last four years, the mechanics of the vote simply do not allow for this.
Article 18 makes provision for one Stormont debate of up to 6 hours and one vote on a motion the wording of which is already determined in law.
There is no opportunity to scrutinise the legislation of the past four years.
Moreover, the Assembly would be compelled to submit all the legislation to one vote when clearly intelligent, meaningful engagement would require the facility to accept some laws, amend and accept others and reject others.
As if this was not enough, any claim that this provides democracy suffers from the fatal flaw that even if the Assembly voted ‘no’ this would not cause any of the laws of the past four years to fall away and would indeed amount to a yes vote for another two years of the continued imposition of new EU laws.
At this point, while Articles 5 to 10 of the Protocol would cease to apply, it is unclear what would happen to the laws imposed during the previous 6 years.
The third problem is that if one agrees that Northern Ireland is made a colony of the EU for the first four years and is effectively stuck with the legislation passed during that period, and instead tests Article 18 as a vote for all the legislation that will come in the next four years, one encounters even more difficulties.
All the problems about not being able to scrutinise or amend four years of legislation with a single vote stand but with the additional challenge – taking us even more into the realms of the absurd – that it would not even be possible to talk about some of the legislation because it would not yet have even been published or necessarily even conceived.
Moreover, and once again, a no vote would actually have the effect of being a yes vote to another two years of imposed legislation.
The nature and effect of a vote has to be judged not by what it is supposed to be its impact but by its constructive effect?
The actual effect of an Article 18 vote does not afford democratic rights in any recognisable sense: namely in relation to scrutinising and shaping legislation to which it is proposed the citizen should be subject, through amendment, with the option of rejecting it entirely if not satisfied.
Instead, rather than giving effect to democracy the actual impact of the vote is its negation as MLAs are effectively asked to renounce the rights of their constituents to be represented in the legislature making the laws to which they are subject in some 300 areas for between 6 to 8 years.
In this sense the decision to call the legislation effecting this negation of democracy the ‘Democratic Consent Motion’ must be called out for what it is, an attempt to pull the wool over our eyes, to treat us as fools and hope that we are not smart enough to work out what’s going on.
Dr Dan Boucher is the DUP’s former director of policy and research and a member of the TUV.