By Jamie Bryson
It is necessary to respond to the lengthy article published in today’s Newsletter by Lords Bew and Godson, two esteemed members of the House of Lords and respected academics/writers.
However worthy of respect any contribution published by such esteemed individuals, the status of the writer does not shield fundamentally erroneous propositions and assertions from being subject to attack.
It is not enough to dismiss such a considered and lengthy contribution with a flick of the wrist, rather it is necessary to dismantle it in a structured and detailed manner, lest the intellectual heft of the writers lead some persons to being persuaded by that which is plainly in error.
The central argument is based upon “achieving unionism’s ultimate objective”. The nature of that would perhaps seem obvious: to preserve the United Kingdom of Great Britain and Northern Ireland.
However, that superficial analysis fails to grapple with the underlying question- what is the Union?
It must mean more than merely the symbolic exercise of sovereignty. In my assessment, I agree with the late Lord Trimble (a close friend of the writers): “the Act of Union is the Union”.
That is so because that foundational constitutional statute provides the basis of the Union. It confers immutable (or at least should) constitutional rights such as those embodied in Article 6, and enshrines democracy via Article 3 which creates the United Kingdom Parliament, and from which that House’s authority is drawn.
The Union is both a political and an economic Union, each component of equal value and importance. With respect, Lord Bew and Dean Godson appear to put unionism’s ultimate objective no higher than merely retaining some tacit symbolic link with Westminster in the exercise of sovereignty.
It would seem they demur from Lord Trimbles analysis as to the substantive nature of the Union, and indeed- if so- it would follow they would disagree with his analysis set out both in the ‘Idea of the Union’ book and in his detailed affidavit in the Allister et al proceedings.
That is the only logical reading to extract when one reads the impugned article. This is so because all of that which the esteemed writers urge upon unionism requires a fundamental diminishing of core constitutional rights, certainly in relation to Article 6 of the Acts of Union, and moreover also, in truth, in relation to the political union because whilst it is true to say Parliament remains sovereign, ‘day to day’ exercise of sovereignty has been effectively subcontracted in large part to the EU who now make laws applicable in Northern Ireland.
The Stormont brake doesn’t remedy this derogation, but rather entrenches- as a matter of international law- the EU’s ‘right’ to make laws for Northern Ireland, and of course (as a matter of international rather than domestic law) in arbitration proceedings provided for in the Windsor Framework, an arbitral ruling could force the UK to implement impugned EU law notwithstanding the Stormont brake.
The Stormont brake, even if pulled, remains subject to the jurisdiction of arbitration under Article 175 of the Withdrawal Agreement. If any such arbitration found against the UK, the EU law would without more automatically come into force in Northern Ireland.
Turning now to the substance of the article. It is asserted that “Northern Ireland’s economy remains governed [by the UK] directly or through devolution”. That broad statement, whilst being true in relation to some aspects of the economy, simply cannot be said to be true when Northern Ireland is in fact for large parts of the economy in a different regulatory zone than the rest of the United Kingdom; a regulatory zone in which it is the EU rather than UK writ that runs.
This is put beyond all dispute by the reality- set out clearly in the Official Control (NI) Regulations 2023- that Northern Ireland is subject to EU Regulation 2017/625, which designates Northern Ireland as the “entry point” into EU territory.
If, as I submit (following the reasoning of Lord Trimble), the Act of Union is the Union, then far be it from the economic rights inherent within the concept of equal citizenship (central to the Covenant) being preserved, they are in fact fundamentally diminished.
The continued application of EU law, which Lords Bew and Godson, seek to minimise, creates an undisputable “subjugation and suspension” (as per the UKSC in Allister et al) of Article 6 of the Acts of Union.
Northern Ireland is placed in a different legal regime, and the application of the green lane-red lane does not, as the authors suggest, cure this constitutional absurdity, but in fact further compounds it.
A trader moving goods internally within the UK between GB-NI must first obtain authorisation, providing information for “customs purposes” (see Article 9 of the Joint Committee decision 01/2023).
Unless and until such authorisation is granted, the default presumption is that all goods (falling under the terms of Article 5 (2) the Protocol) are deemed ‘at risk’ and thus subject to the full customs requirements and rigors of the Irish Sea border.
Indeed, even for those who manage to access the green lane, the gateway to such access requires (as set out above) the provision of information for “customs purposes”. The position is beyond dispute: there remains a customs border in the Irish Sea. It has two dimensions, a soft customs border (the green lane) and a hard customs border (the red lane), but both constitute a customs border nevertheless.
It seems obvious (or ought to be) to point out that the imposition of such conditions and fetters on trade is a fundamental breach of the guarantee of “equal footing” in Article 6 of the Acts of Union. Throughout Lords Bew and Godson appear to forsake “equal footing”, and instead focus on “access to the UK market”. Those are two entirely distinct concepts.
I note that Lords Bew and Godson appear to suggest the DUP’s fourth (of seven) key tests envisaged the continued application of EU law. This is a rather strained reading of a sentence which does no more than say the people of NI must have a say in the laws that govern them.
Moreover, it must be read compatibly with the first of the DUP’s seven key tests, which requires the restoration of Article 6 of the Acts of Union. And, as set out, the continued application of EU law to Northern Ireland (alongside the fetters to trade imposed by the ‘two lane’ system) amounts of a indisputable breach of Article 6 (as confirmed by the Supreme Court).
The presentation of the Protocol Framework as a “gain” is, I regret to say, fundamentally intellectually dishonest. If one’s home is robbed and all the most precious possessions are plundered, could it ever seriously be suggested that the robber returning an imitation of some of that which was stolen represents a “gain”?
It is, as a matter of fact, plain that the Protocol Framework does not cure the inconsistency with the Belfast Agreement. It does not remedy the change to NI’s constitutional status brought about by the subjugation of the Acts of Union (as ought to be safeguarded pursuant to Article 1 (iii) of the 1998 Agreement, which didn’t find itself translated into section 1 (1) of the 1998 Act, unlike Article 1 (ii)); and moreover, it does nothing to alter the reality that on the so-called ‘consent’ vote, cross community consent- which on any reading of either the 1998 Agreement or section 42 of the NI Act 1998- should apply to decisions coming before the Assembly, has been disapplied to disempower unionists from exercising this safeguard.
At this juncture it is important to knock down one trope which has gained traction. Firstly, the Supreme Court did not hold that cross-community consent (found in section 42 of the 1998 Act) was not applicable, but rather simply found that due to the all-conquering nature of section 7A of the EUWA 2018, that Parliament had the sovereign power to disapply the provision. The court, obviously, made no comment on whether that was consistent with the spirit and objectives of the Belfast Agreement.
Secondly, the Supreme Court- albeit obiter- effectively knocked down the prevailing narrative which held that cross-community consent only applied to devolved matters. It doesn’t; it applies to any matter to be voted on by the Assembly (see Lord Justice Stephens, para  in Allister et al).
The Newsletter article also parrots the Doug Beattie line that the only way to test to Stormont brake, is to use it. This is simply untrue. The working of the Stormont Brake is set out in express detail in the Windsor Framework (Democratic scrutiny) Regulations 2023, and- as set out above- the reality remains that, in terms of acting consistently with international treaty obligations, the UK does not have the final say as to whether an EU act applies to Northern Ireland, even if the so-called brake is pulled.
It is more like triggering a warning light than a brake. I’ve yet to see a brake (one that works anyway) which is ultimately unconnected to that which it purports to halt.
There is a weak argument made for returning to Stormont. Due, no doubt, to the evident intelligence of Lords Bew and Godson, they are wiser than the likes of Doug Beattie who founds his argument on the plainly unsustainable ground of claiming returning to Stormont can be used to “challenge” the Framework.
That is just a silly proposition. Stormont has no mechanisms by which to “challenge” the Framework, rather the obligation in law on Executive Ministers is to implement it (see Colton J in Rooney and JR181 (3)).
The proposition of Doug Beattie, in layman’s terms, is like suggesting the way to combat your house being on fire is to seek to preserve your home by pouring fuel on.
Lords Bew and Godson are much more subtle, but the weakness of their assertions is evidence of the unsustainable position they seek to advance. Most bizarre in this subtle effort at coercing unionists back into Stormont is the suggestion such a return is necessary for the “balance of the Belfast Agreement”.
As set out in detail above (and proceeding, for arguments sake against my own position on the issue, on the basis the Belfast Agreement was balanced) the unbalancing of the Belfast Agreement (by the alteration of NI’s status in the Union and disapplication of cross community consent safeguards) is baked into the Framework.
In returning to Stormont unionism would not preserve the ostensible balance of the Belfast Agreement, but rather would validate the unbalanced nature which operates from a core basis that unionism must give, and nationalism must get.
If further evidence was needed as to the threadbare and intellectually unserious nature of the assertion unionists should return to Stormont, it is found in what amounts to an effective plea for unionists to operate the arrangements with which we disagree, because that is what Sinn Fein does in relation to the UK. This suggestion is unworthy of the intellectual caliber of Lord Bews and Godson, and one struggles to see how it ever found its way into what is a serious and considered (albeit, as set out, disputed) contribution.
There is clearly a concerted effort to change the ‘mood’ amongst unionism, and present the Framework as something other than it is. I have deep respect for Lords Bew and Godson (Lord Godson’s book on David Trimble is amongst the best I have ever read), but on this issue that respect, or their intellectual heft, simply cannot obscure the unsustainable nature of the arguments which they have sought to advance.
Next week (Ulster Day) a detailed paper will be published expanding upon many of the arguments set out herein. There is a thoughtful foreword by Irish High Court Judge Richard Humphreys, and I hope it will make an important contribution to the debate.