David Green is a trustee of Civitas.
A referendum could overcome the stand-off over the Northern Ireland Protocol. Instead of ending the Protocol against the will of the EU, our Government should ask the EU to accept the results of a referendum.
Under article 18 of the Protocol there is provision for democratic consent to be tested by December 2024. If the date were brought forward, the current stalemate could be resolved.
These are the current battle lines. The British Government agreed to checks at the Irish Sea, but objects to the manner of their implementation, which has been too heavy handed, leading to considerable additional costs. It has threatened unilateral abandonment of the Protocol.
The EU wants to prevent goods entering its market without full compliance with EU regulations for fear of undercutting EU producers.
In most international disputes there are usually the real objectives of the parties and the public positions they adopt to appeal to public opinion. The EU’s public positioning relies on two arguments.
First, that ending the Northern Ireland Protocol would endanger peace because it would require border checks between Northern Ireland and the Republic. Second, that if the British Government ends the agreement it would be ‘breaking’ its treaty obligations.
These arguments have considerable force despite relying on untrue claims. First, the UK does not want a border and so does not endanger peace. Second, there is provision in the treaty to end the arrangement in the event of serious ‘economic, societal or environmental difficulties’. Enforcing article 16 would not, therefore, be ‘breaking’ an international agreement.
But the real problem is the lack of democratic consent for the Northern Ireland Protocol, and the only way to test consent in a situation like this, is by referendum.
A mere vote in the Northern Ireland Assembly would not have sufficient democratic legitimacy. The main parties largely want to gain advantage at the expense of rivals and a referendum avoids the distortions of partisan rivalry. In any event there may not be a functioning assembly to hold a vote.
The Protocol provides for democratic consent to be tested within four years of the end of the transition period, namely by the end of December 2024. The method of testing is solely under the control of the Government and, in a document dated October 2019, it chose to hold a vote in the Northern Ireland Assembly.
However, the Assembly has proved to be as destructive of democratic legitimacy as the Weimar republic, chiefly because stubborn minority parties can block improvements. A referendum cuts through partisan recalcitrance by giving power to the whole electorate.
In any event, the possibility that the Assembly would not be functioning was foreseen in the unilateral declaration of October 2019. Paragraph 5 provides for the Government to establish an alternative mechanism for testing consent, if the preferred option of an assembly vote is not possible. At present no such vote would be possible.
Under the unilateral declaration Parliament could define a referendum as the alternative mechanism. However, that would mean holding a vote between October and December 2024, which would be too long to wait while feelings are running so high.
Instead of allowing itself to be subject to false accusations of endangering peace and breaking international treaties, the British Government should call upon the EU to accept the result of a referendum before the end of 2022.
This would put the it on a higher moral plane than the EU. If the EU opposes an early referendum it will not only be preventing the people of Northern Ireland from expressing their view, it will also be blocking a way of overcoming the prevailing logjam.
It would have to show itself in its true colours, namely an anti-democratic conspiracy by a ruling elite to pursue its imperial objectives regardless of public opinion, as revealed by its response to the Irish referendum on the Lisbon Treaty in 2008.
A referendum is consistent with our tradition that the people are the ultimate sovereign, and furthermore it would be consistent with the 1998 Belfast Agreement.
The Northern Ireland Protocol stipulates that the method of ensuring democratic consent must be compatible with the 1998 Belfast Agreement. The agreement envisaged a referendum on a united Ireland and, consequently, a referendum on the Protocol would be well within its constitutional expectations.
The Government is allowing itself to be outmanoeuvred. A referendum promises a mutually beneficial solution without harming our reputation for always seeking the peaceful resolution of international disputes.