by Jamie Bryson
Writing on the Slugger O’Toole website, the UUP leader Doug Beattie sought to set out his case for unionism returning to Stormont and as such complying with the legal obligation which flows from being in the Executive, namely implementing the subjugation of the Union.
That this subjugation is the effect of the Protocol, and its embedding Framework, has been put beyond all doubt by the Supreme Court in Allister et al. Article 6 of the Act of Union is “subjugated and in suspension”.
In 1998 Lord Trimble rightly said “the Act of Union is the Union”.
This subjugation of Article 6 is brought about by three issues which the Protocol Framework does not remedy, but rather compounds:
(i) the requirement to obtain “authorisation” to trade in the Green lane, and in doing so the requirement to provide information for “customs purposes” (see Article 9 (2) of the EU-UK joint committee decision 01/2023), not only illuminates the reality of a customs border in the Irish Sea even for internal UK trade, but places fetters on GB-NI which does not apply to internal GB trade. This offends the equal footing guarantee in Article 6;
(ii) the continued application of EU law, even for those trading solely within the UK internal market, places Northern Ireland in a distinct regulatory regime, and as such it plainly offends the Act of Union. The effect is constitutionally seismic. As stated by Colton J in Rooney and JR181 (3) at paragraph  to  “the UK is not to treated as a unitary state” and for the purposes of the Protocol (and Framework) Northern Ireland is to be treated as a foreign country vis-à-vis GB, and as the entry point into, and thus part of, EU territory (see EU Regulation 2017/625 which is implemented by the Official Control (NI) Regulations 2023).
This analysis was set out even more clearly by McCloskey LJ in the Court of Appeal in Allister et al whereby he stated “NI belongs more to the EU market than the UK internal market” (see para ) with the Protocol (and Framework likewise) “sacrificing the long standing soft border between NI and GB (dating from the Act of Union) and altered internal trading arrangements, whilst simultaneously perpetuating the application of a discrete and potentially evolving corpus of EU laws in NI” (see para ).
(iii) The bespoke dual market access afforded to Northern Ireland is plain inconsistent with the “equal footing” requirement in Article 6 of the Act of Union. The requirement for equal footing means what it says; that means one part of the UK may not have privileged access over the rest of the UK.
The constitutional impact of the breach of Article 6 of the Act of Union (referred to by UUP stalwart the late Lord Trimble “..as the Union”) is unmistakable.
That being in the Executive would require any unionist holding office to implement the subjugation of the Union is also beyond any doubt. It is set out in clear and express terms in the aforementioned Edward Rooney and JR181 (3) case.
It seems Mr Beattie either fails to understand any of this, or extraordinarily is willing to collaborate in its implementation. Whichever is true, it is deeply worrying that any unionist leader would advocate such a constitutionally corrosive position.
Mr Beattie also has consistently failed to grapple with the point that the fundamental basis of pro-Agreement unionism was that the principle of consent secured the Union. As Lord Trimble set out in stark terms in his affidavit in Allister et al this has turned out to be a deception, with the principle consent being shown to be more akin to a chocolate fireguard than a constitutional safeguard.
If you can hand law-making and judicial powers to the EU without triggering the purported safeguard, so too could they be handed to Dublin. Are the UUP seriously saying that despite the whole basis upon which they sold the Belfast Agreement being exposed as a flaw, they are willing to close their eyes to this, and operate that Agreement- with all its inherent imbalance- nevertheless?
This leads me to ask a rather important question: is there any damage the UUP would not willingly accept or go along with? How far will ever be too far? What is their ‘this far and no further’ point of humiliation, deceit and harm inflicted on unionism?
Mr Beattie states that bringing down Stormont changed nothing. Aside from the fact that this provided significant leverage and plainly focused minds, there is a more important issue. The collapsing of Stormont was a point of principle, a line in the sand. It was self-respecting unionism refusing to be treated as second-class citizens or to sit quietly at the back of the bus whilst monumental harm was inflicted upon unionism and the Union. Moreover, it had- and has- the support of the vast majority of the unionist electorate. The UUP’s plea for a weakening is the position of a small minority.
It is repeatedly said that being in Stormont could “challenge the Framework”. Really? How does Mr Beattie propose doing this. He is going to implement and embed the Protocol Framework (and thus subjugation of the Union) on one hand, whilst “challenging” it on the other. This would lead one to believe Mr Beattie doesn’t really know where he is on this issue; he is simply desperate to return to Stormont- no matter the cost.
This is supplemented by referring to the Assembly vote on Articles 5-10 of the Protocol. That Mr Beattie is willing to take part in this charade, this key vote coming before the Assembly, whilst cross community consent has been disapplied is a worrying example of just how far the UUP are willing to debase themselves out of some form of Belfast Agreement Stockholm syndrome.
Is there anyone who really thinks that if cross community consent was disapplied to the disadvantage of nationalism, that nationalist parties (or their fellow travellers in Alliance) would simply smile and play along?
We then move on to the UUP talking point around the Trading and Cooperation Agreement (‘TCA’) review. It seems concerning it needs pointed out to Doug Beattie and the UUP that international relations are non-devolved matters, and therefore have absolutely nothing to do with the NI Assembly.
It is the Government and Westminster Parliament (in which the UUP has zero MPs) who can influence the TCA review (and the clue is in the title: it is a review not a renegotiation).
Finally, Mr Beattie (openly referred to as ‘dangerous Doug’ by many unionists) says he needs to “press to test” the Stormont brake, to see how it works. No, all he needs to do is go on legislation.co.uk, type in THE WINDSOR FRAMEWORK (DEMOCRATIC SCRUTINY) REGULATIONS 2023.
It sets out in express and clear terms how the Stormont brake works. What more do the UUP need to know?
Despite Mr Beattie’s urging for unionism to implement the Protocol Framework, his own UUP Councillors in Ards and North Down last night (13th September) voted down funding to do just that, refusing- in defiance of legal advice- to put their name to implementing the subjugation of the Union.
Perhaps some UUP Cllrs on the SS Surrender wish to turn it into a battle ship rather than a sinking ship.