An Open Letter
Dear Lord Bew,
On Sunday Politics you described the detailed response (found here) to your letter in the Newsletter of 22 September 2023 as “rhetoric” and “flying words”.
With respect, this singularly fails to grapple with any of the contentions set out in the response (in a respectful and considered manner). Those criticisms and challenges remain unanswered. I do not repeat them here as it appears unnecessary to do so.
However, it is important (in my view) to highlight some of the inaccuracies in your BBC interview.
Firstly, you contended (repeatedly) that the issue of EU law is not part of the DUP’s seven key tests, and appeared to suggest this had somehow appeared only recently. This is demonstrably untrue because I shared platforms with the DUP leader over a year ago in which both he and I expressly raised this issue, and indeed Sir Jeffrey- prior to the Framework- also made this point explicitly in Parliament.
In addition to that, it was flagged as a key issue in a paper which I co-wrote along with others including Martin Howe KC, Barnabas Reynolds and Christopher Howarth of the ERG. This paper was endorsed by the DUP and provided to Downing Street (prior to the Framework) via two distinct channels. There is no-one in Number 10 who can claim that the issue of EU law was some kind of surprise.
Notwithstanding that, your assertion is plainly erroneous by virtue of simply reading the first of the DUP’s seven key tests. It requires the restoration of Article VI of the Acts of Union.
The breach of Article VI is caused, most egregiously, by the continued application of EU law. There is no need to take my word for it, it was set out by at first instance Colton J at paragraph  of Allister et al  NIQB 64, which was later endorsed by McCloskey LJ in his concurring judgment in the Court of Appeal at paragraphs -.
It follows as a matter of the most compelling logic that if restoring the Acts of Union is the very first test, and the breach of the Acts of Union is the continued application of EU law, then it is simply unsustainable to suggest that EU law is not part of the DUP’s seven key tests much less that it has never been an issue until recently.
Secondly, and somewhat confusingly, you suggested “…Article VI [of the Acts of Union] is gone” by referring to the initial territorial extent referring to Ireland, rather than Northern Ireland.
This can be shown to be fundamentally wrong by again simple reference to the Allister et al case in which at all levels (High Court; Court of Appeal and Supreme Court) it was held that Article VI of the Acts of Union remains in force.
However, the complete and irrefutable answer to your assertion is provided by Statutory Rules and Orders, 1923, No. 405. The Irish Free State (Consequential Adaption of Enactments) Order, 1923 the effect which is to provide those references- in every previous enactment- to Ireland are to be read as excluding Southern Ireland, and thus as Northern Ireland.
Article VI of the Acts of Union remains firmly in force, every bit as much as Article III which is the statutory basis for Parliament itself.
Thirdly, you suggested the Acts of Union issue could be resolved by a statutory instrument. This is not so because the “subjugation and suspension” of the Acts of Union comes about because of the all-conquering nature of section 7A of the European Union (Withdrawal) Act 2018. In order therefore to reverse this, primary legislation would be required.
Fourthly, you postulated that sovereignty was not impinged by the Windsor Framework. It is true to say that Parliament- which voted on a limited aspect of the Framework which was otherwise concluded by the Government in exercise of the prerogative power- may support the Framework, and thus surrendering sovereignty over one part of the Union, and that therefore the inference being that if it is a sovereign choice to dilute your own sovereignty this is a different matter.
That being said, I am not sure your argument is as nuanced or technical as that (and that isn’t a criticism). It seems you squarely suggest that the Windsor Framework does not dilute the sovereignty of the United Kingdom. This is again demonstrably false. The Stormont brake is subject to arbitration proceedings pursuant to Article 175 of the Withdrawal Agreement. Thus, if an arbitration ruling went against the UK, then as a matter of not purely international but in fact domestic law, the relevant EU law would apply without more. That is plainly inconsistent with sovereignty.
Fifthly, the omnibus point you appear to make is that the Windsor Framework is imperfect, but that nevertheless unionism should not only endure it, but assist in the infliction of these wounds upon ourselves.
I do have to question why it always ought to be unionism that must compromise and concede, based on the somewhat illogical theory that the best way to save the Union is to consistently assist in its incremental dismantling. That, to me, is an absurdity.
As I made clear in my response, and previously in our exchange of articles in the Newsletter after the Supreme Court judgment, I have deep respect for your work and always listen attentively to your considered contributions, much of which I find value and agreement in.
However, on this issue, I simply cannot agree, and it seems plain to me that, for whatever reason, you have fallen into error. I’d much rather you took to task my points of substance on this subject, rather than- as on Sunday Politics- trying to evade the issues and instead simply dismissing as rhetoric points with which you disagree.
Finally, it is a point of note, which respectfully I feel the BBC failed to appropriately declare, that your son is a senior advisor in Downing Street who was deeply involved in the construction of the Windsor Framework.
Whilst I do not, for one moment, suggest there is anything wrong with this (other than the flaws in the Framework), or that there is any incapability of dividing your views from that of your son, it does at least raise an ‘apparent’ (if not actual) bias point.
I do feel that there is a potential issue when a parent, especially someone as eminent and respected as yourself, uses their good offices- at a point of significant constitutional controversy and I would suggest peril- to promote a political agreement in which their son was a key architect of at least some parts of it, without family link to the impugned Agreement being declared by those platforming such contributions.
Those considering these contributions to the debate, and the timings of the interventions, ought to at least be aware of that issue.
It is my sincere hope you will consider the points raised, and if you find them disagreeable that you will respond- publicly- and explain why you say that which I have put forward is incorrect.
I look forward to hearing from you.