An analysis of the UK Government Command Paper - by Jamie Bryson

The command paper at paragraph 29 sets out the reasons why the Government are now satisfied that the criteria for triggering Article 16 has been met. This is of course welcome, but there is an inherent misdirection on the part of HMG.

It has created, and subsequently discharged, a burden which is higher than that set out within Article 16 (1) itself. The whole plethora of difficulties with the Protocol set out in paragraph 29 do not need to be taken in their totality, nor does more than one of the access conditions in Article 16 (1) need to be met. The existence of merely one of the difficulties set out in paragraph 29 is suffice for the discharge of the extremely low burden required by a plain reading of the text of Article 16 (1).

Confirmed by the Government within paragraph 29 is that the protests- all manner of them (with a special mention for the unnotifed public parades)- have contributed significantly to moving the Government to the point of stating publicly that the criteria for Article 16 is met. An elementary reading of the relevant paragraph in the command paper would illuminate the pathway (which has always been clear) to getting rid of the Protocol: increased political and societal difficulties.

That requires a parallel campaign of street protests and political disruption, both of which must be incrementally increased in intensity in order to nudge the Government along to the inevitable acceptance that the Protocol is, and always will be, incompatible with peace and stability.

However, it must be the case that the campaign of protest is targeted and tactical. It can not be the case whereby protest is for protests sake; there must be an objective, and the means of protest must be designed to assist in achieving it. Thus far the objective was using protests to create enough societal instability to justify, and ultimately secure, the triggering of Article 16. That to a large extent has been achieved; the Government are now at a point whereby the further inevitable intransigence by the hostile EU and Irish Government leaves them with no choice but to deploy Article 16, which it would seem now has the support of Parliament.

Importantly, the mode of protest has been incrementally growing in intensity (albeit with a few larger explosions of more violent manifestations of justifiable anger). This ‘incremental intensity’ form of protest has been effective; this is a long campaign and tactically momentum will ebb and flow, so it is important to deploy protests in the most advantageous manner.

As I outlined within a nine-page legal analysis for Unionist Voice Policy Studies published a few hours after the Command Paper was released, I do think there is a balance to be struck between giving the Government time to (a) build their case of reasonableness (which is a crucial component in international law) and (b) to demonstrate their commitment to following through on the commitments in the command paper.

However, only a fool would trust this Government who have shown themselves time and time again to be weak on the Union. And so, providing (as a tactical response) time-limited space for the development of the shared objective is a prudent step, but it must be balanced with ensuring that the societal and political instability remains evident, but in a manner whereby the Government, Dublin and the EU know that there is much more to come if the Protocol isn’t removed in a timely manner.

Notwithstanding the legitimate misgivings about the bona fides of the Government, they have nevertheless, in an HMG Command Paper, make a remarkable admission within paragraph 47.

They say: “The Protocol is clear Northern Ireland is fully part of the United Kingdom’s customs territory. But this principle does not apply in practice…”

Here we have the sovereign Government of the United Kingdom accepting that whilst symbolically Northern Ireland is part of the UK customs territory, but that this- due to the Protocol- does not apply in practice. That is extraordinary.

It brings us back to the theory I have sought to develop recently around the ‘substance’ vis-a-vis ‘symbolism’ interpretations of the principle of consent within section 1 (1) of the Northern Ireland Act 1998.

If, without offending the apparent constitutional status protections, you can change NI’s place in the UK customs territory (in practice); repeal the foundational constitutional statute (Art 6 of the Act of Union); hand law making powers over NI to a foreign jurisdiction (which means they could equally be handed to Dublin); and lock NI in an economic United Ireland, stranded within the orbit of the EU’s single market empire, then they are really no protections at all, are they?

If you can change everything but the last thing, then the logic is that unionists are expected to engage in a process that by design requires an intellectually self-deceiving approach of unionism reconciling itself to incrementally ‘weakening the Union, to save the Union’. That, in of itself, reduces the process to absurdity. Why would any unionist take part in a process which is designed to destroy the Union?

That reality should cause every unionist to deeply consider the Belfast Agreement and iniquitous process it spawned. It is, and always was, a deceptive snare. This deception is the father of the Protocol.

The real objective of the EU and hostile Irish Government is plain to see from the diversion of trade submissions, coupled with the EU/Irish approach to grace periods which they say is a goodwill gesture to assist in reorienting supply lines. In short; they will kindly permit a little time to carve NI fully off from the UK and into an economic United Ireland.

And that is what their objective is, and always was. It was not for no reason the banners that appeared from October 2019 and the Betrayal Act campaign majored on the phrase ‘economic United Ireland’. It was always plain to see that was the real agenda; it is the subjugation of NI, welded to the covetous neighbours in Dublin and held hostage as a colony of the EU. The biggest outrage of all is that the United Kingdom Government permit this land grab without serious defence of its sovereign territory.

Maggie Thatcher went to war to defend the Falklands, this Government are more concerned with placating the invaders. It seems Boris in in fact more of a Chamberlain than a Churchill.

Jamie Bryson is a loyalist activist who works in law and public relations. He is author of Brexit Betrayed and a series of legal papers analysing the constitutional law aspects of the NI Protocol.