My Lords, the amendments would subject aspects of the Bill to the approval of the Northern Ireland Assembly. However, my contention is that they will work only if preceded by a prior vote on the protocol itself in accordance with the standards of cross-community consent put in place for the controversial matters set out by the Belfast/Good Friday agreement.
The Good Friday agreement is now very vulnerable because of the approach of the European Union in relation to two key principles at the heart of it. First, the Good Friday agreement is predicated on a commitment to affording the interests of both communities parity of esteem. The interests of unionism have not been afforded parity of esteem vis-à-vis those of nationalism with respect to the protocol. While the protocol represents an existential threat to all that unionists hold dear and is rejected by all the unionist parties, it authenticates that which nationalists and republicans desire: the breaking of the UK economy. Secondly, the Good Friday agreement is predicated on a commitment to non-majoritarian politics, which means that controversial decisions have to be made on the basis of cross-community consent. Again, that has been cast aside.
In the first instance, the EU sought to pressure the UK Government into the protocol without affording Northern Ireland any say in the matter, notwithstanding the fact that the effect of the protocol is to slash the value of the Northern Ireland vote, as 300 areas of lawmaking to which we are subject are taken from us and made by a legislature of a foreign power. When the EU finally agreed that the Northern Ireland Assembly should be given some say in the matter, it insisted for some bizarre reason that it should happen four years afterwards. It made provision for it to continue for at least another four years without cross-community support, resulting in eight years of government outside the confines of the Belfast agreement, which could of course continue indefinitely with regular four-year extensions.
That is the height of irony because anyone who studies democracy will know that leading academics in the field, such as Professor Arend Lijphart, are very clear that the EU is one of the most consensual, non-majoritarian polities in the world today. That the
EU decided to betray its own commitment to non-majoritarianism by going out of its way to impose majoritarianism on a polity that it knew was based on non-majoritarianism is quite extraordinary.
This is a major problem not just for the Good Friday agreement but for the protocol. The protocol subjects itself to the Belfast agreement in all its dimensions through Articles 1 and 2. That is a problem for those who wish to argue that international law constrains those seeking to address the clear injustices of the Northern Ireland protocol, because Article 3 of the Vienna Convention on the Law of Treaties is very clear that:
“When a treaty specifies that it is subject to … an earlier or later treaty, the provisions of that other treaty prevail.”
Given that the convention also sets out mechanisms, such as Article 56(1)(b), whereby a state party can lawfully and unilaterally withdraw from a treaty, the refusal of the EU to amend the protocol so that it is properly brought into line with the prior treaty clearly gives grounds for our withdrawal.
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We now find ourselves in a very difficult situation, where not only have the Government of Northern Ireland departed from the Belfast/Good Friday agreement but, because of this, a new arrangement has been permitted to develop that would never have come to pass had the Belfast agreement been respected. In this context, it is not appropriate to respond to the protocol as a given and to ask the Northern Ireland Assembly to agree, as the amendments before us now suggest, to any change.
If we are to engage the Northern Ireland Assembly and save the Belfast/Good Friday agreement, we have first to ask the more basic question of whether the Northern Ireland Assembly will consent to the protocol. If the Assembly endorses the protocol on the basis of cross-community consent, in line with the Belfast agreement, then it would be appropriate to move on to the votes mandated in these amendments. However, if the Assembly does not support the protocol on the basis of cross-community consent, in line with the Belfast agreement, and the surrendering of the right to elect legislators making laws to which the people of Northern Ireland are subject in some 300 different areas, then the protocol should fall away.
Whatever happens, we have to re-embrace the discipline of the Good Friday agreement and the subjection of the protocol to that prior treaty, courtesy of Articles 1 and 2 of the protocol, if we are to celebrate 25 years of the Good Friday agreement come April.