Although there has been some recognition of the difficulties that the Protocol that the EU has imposed on Northern Ireland as part Brexit has caused, the true extent of these difficulties has been and continues to be massively underestimated. The Sub Committee on Protocol of the Lords European Affairs Committee is a clear example of this tendency. While it is encouraging that the Committee has acknowledged the existence of a democratic problem related to the Protocol that is worthy of consideration, the way in which the Committee has characterised the difficulty as a “democratic deficit” is deeply problematic.
When discussing EU-related challenges, the term “democratic deficit” has a well-established meaning that relates to a difficulty of a wholly different order to that impacting Northern Ireland as a result of the Protocol. It refers to member countries and their electorates (not jurisdictions, like the UK, or therein Northern Ireland). It arises from the fact a large number EU decisions are made at a supranational scale, for which it is difficult for national Parliaments to ensure accountability, yet the powers of European Parliament are either too weakening or too inaccessible for voters who instinctively seek to be accountable on a more immediate national basis than on a distant supranational basis.
While the EU’s democratic deficit can be frustrating, it doesn’t mean that citizens of the EU are denied their democratic rights. The EU has a European parliament that represents the citizens. They can and do to some extent call European governance into account. Citizens can also hold the EU responsible through their national governments.
Contrary to this, the nature and extent the democratic problems resulting in the EU Protocol on Northern Ireland are entirely different. Instead of presenting us a challenge that weakens democratic responsibility, creating a shortfall, the Protocol completely eliminates representative democracy from Northern Ireland in respect to around 300 areas of law-making. The two scenarios – democratic difficulties resulting from membership of the EU and democratic problems resulting from the NI Protocol – are thus like chalk and cheese. The latter needs a completely different characterisation than the former.
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The best available framework for coming to terms with the consequences of the Protocol on Northern Ireland is the United Nations category: a “Non Self Governing Territory” (NSGT). An NSGT (a colony), as defined by the UN, is a jurisdiction whose laws or government have been made/discharged for it by an external power that it is not a part of and in which it does not have representation. This is the current situation in Northern Ireland.
Some might object, pointing out that, while Northern Ireland is part of the United Kingdom in 300 areas, laws are made there by an external power. However, the UN definition doesn’t require that all aspects of government be made by an external power to make a jurisdiction NSGT. If one examines the few colonies that are left in the world today, it is clear that they have their own legislatures, governments, and are considered colonies by the UN because they are still governed in certain areas by an external power.
This is quite awkward for the Protocol’s advocates because the international community has made clear, through UN, that they do not believe that people should live in states governed by external powers. As a reflection of this, the UN has a standing Committee on Decolonisation (to promote decolonisation), has deemed this the Fourth International Decade for the Eradication of Colonialism (2021 – 2030) and sets aside each year a UN Week of Solidarity with the Peoples of Non-Self-Governing Territories, the 2022 expression of which runs from today 25 May until 31 May.
The Protocol is not only unthinkable, but it also involves taking a jurisdiction which has enjoyed self-government for more than two hundred years and imposing NSGT status upon it. It is also unthinkable because it directly contradicts the Good Friday Agreement which commits to upholding civil rights including “the right to pursue democratically national and political aspirations.”
The Protocol has made it impossible for the people of Northern Ireland to pursue their national or political goals democratically through the ballot box. This is because they cannot stand for elected office to be the elected legislator to make those law changes. They also can’t vote for a candidate for that position. Given Northern Ireland’s history in which some people have sadly turned from the ballot box to violence, it is extraordinary that anyone should deem it appropriate to curtail the impact of our votes, removing some aspects of our lives beyond the reach of our democratic politics.
It is a relief that the British government has finally indicated it is willing to take action on the Protocol. These changes must stop the practice that Northern Ireland is being governed by a government and legislature it is not a member of. This would be a grave blow to the Good Friday Agreement.
