Opinion

Newton Emerson: Protocol legal case could backfire badly on the unionist parties

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

A sign on the main road on the approach to Larne protesting against the Irish Sea border imposed by Brexit. Picture by Stephen Davison
A sign on the main road on the approach to Larne protesting against the Irish Sea border imposed by Brexit. Picture by Stephen Davison A sign on the main road on the approach to Larne protesting against the Irish Sea border imposed by Brexit. Picture by Stephen Davison

Legal experts are intrigued by the case to be brought by the three main unionist parties against the Northern Ireland protocol.

The consensus is that the DUP, UUP and TUV will lose but in the process help clarify complex points of law, devolution, the operation of the protocol and how they interact.

It is all rather arcane, certainly for the fired-up chunk of the electorate at which the case is presumably aimed. Claiming the protocol breaches the 1800 Act of Union raises fascinating historical details about how tariffs once existed between Britain and Ireland but as political theatre it looks like citing Magna Carta while refusing to pay your television licence. A stunt to give the appearance of doing something could backfire badly on the unionist parties by forcing the government to put the sea border on an even firmer legislative footing.

Most of the case is based on claiming the protocol breaches the Good Friday Agreement, which could sink into the public mind as a circular argument.

Unionists have always strongly and quite rightly refuted the idea that Brexit breaches the agreement. They have welcomed the consistent failure of others to challenge Brexit on this basis through the courts, yet now they are bringing a challenge of their own.

The three parties say their case is different because it is about the protocol, not Brexit. In legal terms, they are making a distinct argument from the 2017 Supreme Court case brought by campaigner Gina Miller, for example, who unsuccessfully argued Brexit broke the agreement’s consent principle.

But once again, as political theatre, unionist are staging a farce. Their long-standing, over-arching defence of Brexit has been that the agreement makes no requirements on the nature of the border, Northern Ireland’s trading relationships, consent for its status other than in a border poll or cross-community consent for non-devolved issues. These positions cannot simply be reversed by moving them from Newry to Larne.

Unionists have already engaged in a circular argument over violence.

They complained it was cynical to view republican attacks on a hard border as inevitable and unmanageable. Now some unionists are warning this created a moral hazard that encourages loyalist violence over the sea border - in other words, themmuns started it.

But what started the moral hazard was claiming Brexit breached the agreement. This was initially done to avoid the impression of giving into violence, by pretending an invisible border was already written into a peace deal.

As more breaches were erroneously alleged, the agreement became a weapon in Brexit arguments rather than being seen as a framework to solve them. A backstop, since evolved into the protocol, was then portrayed as necessary to protect peace. The collapse of Stormont throughout most of this period obviously did not sell the agreement as a solution.

If unionists were clever, a phrase I have become tired of writing, they would step back and proclaim they were right the first time: Brexit does not breach the agreement; the agreement is the answer to Brexit.

Stormont, cross-border bodies and the north-south and east-west institutions can accommodate almost every form of consultation and cooperation Brexit requires - as pointed out this month in a letter to Brussels from most of Ireland’s MEPs.

If Brexit was approached in this way it would be easier to mitigate sea border and other aspects of the protocol and unionism would be far better placed to contribute.

The belief that Brexit breaches the agreement remains pervasive and dangerous. It is repeated almost without question in Dublin, Brussels and Washington and is an article of faith among remainers in the UK. British governments have played their part in creating the myth when it suited them. Whitehall helped concoct the notorious ‘mapping exercise’ that claimed Brexit would block 142 required areas of cross-border cooperation. Officials were eventually forced to reveal that only a few areas were affected and the agreement provided the means to keep them unblocked.

Reaffirming Brexit’s compatibility with the agreement would put the focus back on what the protocol is really for: protecting the EU single market.

There are valid practical and security reasons why this is better done at Larne than at Newry, awkward though the security concerns might be to admit. But there is no need for checks to be onerous as the risk to the single market via Northern Ireland is trivial.

The more unionists talk up risks to the agreement and the union, the further they get from making that case.