Are the UUP backsliding on the joint-unionist Protocol pledge?
By Jamie Bryson
On Ulster Day 2021 the leaders of the DUP, TUV, PUP and UUP signed a joint unionist declaration of unalterable opposition to the Protocol. It is the earnest desire of all right thinking unionists to see unity of purpose amongst political unionism, alongside grassroots unionism and loyalism (including the Orange Order). That unity of purpose must be rooted in a fundamental commitment to the Union, which can only be achieved by adherence to the Ulster Day 2021 pledge.
There are growing concerns that one party to that declaration, the UUP, are backsliding.
In consequence, it seems prudent to explore their position, rooted in the Ulster Day solemn pledge itself.
Let us start by breaking down what the pledge means, and its implications, starting first with the declaration itself:
“We, the undersigned Unionist Political Leaders, affirm our opposition to the Northern Ireland Protocol, its mechanisms and structures and reaffirm our unalterable position that the Protocol must be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom”. (my emphasis)
Two key issues emerge. Firstly, the position of rejecting the Protocol and demanding its replacement is unalterable. That means, in short, the Protocol must go. There is no room in that for ‘solutions within the Protocol’, ‘the best of both worlds’ or ‘exploiting potential benefits’, all of which would require to keep at least parts of the Protocol and thus would be entirely inconsistent with the unalterable position that the Protocol “must be rejected and replaced”.
Secondly, as we will see from the explanatory note, respecting Northern Ireland’s position within the United Kingdom is denoted by the continued application of the Acts of Union 1800.
The Protocol, primarily in relation to Article VI, conflicts- and more than that purports to subjugate- the Acts of Union. It is elementary to point out that Northern Ireland being within the orbit of the EU and UK internal markets- the ‘best of both worlds’ according to the UUP’s Dr Kyle- is entirely incompatible with the equal footing clause in Article VI.
Given some of the UUP’s recent pronouncements, none of which have been particularly clear, it seems they either (i) do not understand the declaration they signed on Ulster Day 2021 or (ii) are backsliding on the fundamental basis of the joint unionist declaration.
There was some mischief making- purportedly by elements in the DUP- which sought to suggest ‘best of both worlds’ would be a suitable landing ground.
Thankfully the DUP leader Sir Jeffrey Donaldson has entirely and emphatically rejected this suggestion by reaffirming complete opposition to any arrangements which conflict with the Acts of Union and the DUP’s seven key tests- which also by implication plainly requires amendments to section 1 of the Northern Ireland Act 1998 to protect the substance of the Union.
However, the UUP have thus far failed to explain what their position is. It isn’t at all difficult to resolve the confusion by a simple question:
Do they (i) support Northern Ireland having dual access to the EU single market and UK internal market (or what is left of it), or (ii) do they support the restoration of Article VI of the Acts of Union?
If they support the Acts of Union then that requires emphatic disavowal of the utterances of Dr Kyle and indeed the UUP position more widely.
If they support the dual access position, then the UUP must confront the consequences of that position, which causes- by their own yardstick- constitutional change.
It would seem to me to be an extraordinary position for any unionist party to support fundamental change to the constitutional status of Northern Ireland within the United Kingdom.
The TUV and PUP position is already crystal clear on the issue, there can be no doubt in their commitment to the Acts of Union. It would seem the DUP are also crystal clear on this issue.
Therefore, the UUP- as a signatory to the solemn joint unionist declaration- should clarify their position.
The declaration was also accompanied by an explanatory note. Here are some key extracts (italicised) with commentary on each.
Northern Ireland is a constituent part of the United Kingdom of Great Britain and Northern Ireland by reason of the Acts of Union 1800 and the continuing express will of its people.
This means that the Union is the Acts of Union 1800, and the “continuing express will of its people” can only refer to the principle of consent, embodied (in theory at least) in section 1 (1) of the 1998 Act.
The implication is obvious. Anything that interferes with the Acts of Union (such as the seeming UUP position of dual market access) amounts to constitutional change in breach of the principle of consent.
The Union is both economic and political.
This is an elementary point, and circles back to the first paragraph of the explanatory note. The political and economic Union is Article III and VI of the Acts of Union.
The Belfast Agreement set the conditions on this island for the operation of two separate jurisdictions in order to promote peace, reconciliation and place the people at the heart of any decisions that are made about the sovereign status of Northern Ireland. The Belfast Agreement gave assurance against change without consent and guaranteed equilibrium as between East/West and North/South arrangements. Yet, under the Protocol the East/West relationship has been severely undermined, again without consent. Furthermore, the Protocol is in conflict with the Acts of Union – as declared recently in the High Court.
The clear express implication of this paragraph is that the Protocol causes “change without consent”. That can only therefore mean a breach of the principle of consent (section 1 (1) of the 1998 Act), which according to the above paragraph was a core assurance of the Belfast Agreement, and so it follows that given section 1 (1) of the 1998 Act has been shown not to guard against such fundamental change, then it plainly is fatally flawed and thus the fundamental basis of the Belfast Agreement is unsustainable.
On that footing, which is simply a matter of the most compelling logic, how therefore can any unionist party continue to operate the institutions of the Belfast Agreement, when the core assurance for unionists has been shown to be a deceptive snare?
I should note the UUP, represented via Steve Aiken, had the very argument advanced on their behalf in the High Court Protocol proceedings that section 1 (1) of the 1998 Act was a “deceptive snare”. Do they disavow this submission, made on their behalf?
It seems to me to be an act of constitutional self-harm on an epic scale to continue operating the institutions of the Belfast Agreement in circumstances which by the UUP’s own yardstick (measured by the submission on their behalf in the Protocol case and the paragraph in the declaration around change without consent) have shown the core guarantee for unionists to be a deceptive snare.
I therefore struggle to see how the UUP’s stockholme syndrome commitment to the institutions is in any way logical. Perhaps however they can engage with these issues and set their position out.
The economic union is grounded in Article 6 of the Acts of Union, which guarantees unfettered trade on the same footing between and within all parts of the United Kingdom. The Northern Ireland Protocol fundamentally alters the arrangements within the Belfast Agreement by making Northern Ireland subject to European Union laws and processes of a Single Market for goods, under a European Union customs code and VAT regime, with the rest of our nation decreed a “third country” when it comes to trade and the import of goods.
Again, this paragraph is emphatic on Article VI of the Acts of Union. It therefore- beyond any doubt- precludes any unequal footing (which means NI can not be in either a more advantageous or disadvantageous position- such as having dual EU and UK market access). This paragraph, from a declaration signed by the UUP, entirely undermines the position of Dr Kyle, seemingly adopted by the UUP.
So, do the UUP disavow this part of the explanatory note?
Thus, going forward, any agreement which fails to ensure a proportionate and equitable solution which respects the sovereignty of the United Kingdom and restores our unfettered place within the Internal Market, cannot command the support of the unionist community.
This, again, is emphatic and the effect put beyond any doubt when read in conjunction with the rest of the explanatory note and the declaration itself.
The effect is this: (i) The sovereignty of the United Kingdom means there can be no scope for EU law-making or judicial authority via the ECJ over NI; (ii) restoring NI’s place within the Internal Market means restoring Article VI of the Acts of Union, and that means NI must be outside the EU single market and on equal footing with the rest of the UK, which obviously prohibits dual market access.
And so, it seems there is some confusion being generated by the UUP’s increasingly confused position which suggests they do not understand the joint declaration they signed up to, or indeed the submissions of the applicants in the Protocol case to which their representative Mr Aiken is a party, or alternatively they do understand what they signed up to, but are disavowing it in favour of supporting constitutional change (without consent) to Northern Ireland’s place in the United Kingdom.
Whilst it is entirely a matter for the UUP, it does seem that they are increasingly enthralled by a hyper liberal peace processor academic cabal who it seems are ‘advising’ them. They should understand that those persons are not ideological unionists, rather they are either economic unionists and/or ‘persuadables’ in regards the Union.
Of course, the type of hyper-liberal, fluffy and all things to all people approach being adopted by the UUP is popular in the wholly unrepresentative world of twitter. It is especially popular amongst nationalists, who are regularly endorsing the UUP. As a supposed unionist party, the UUP may want to pause and consider that.
The UUP either stand with all of unionism and loyalism in unalterable opposition to the Union-subjugating Protocol, or they stand with the ‘best of both worlds’ academic cabal which urges acceptance of the Protocol.
In addition, they’d need to be clarifying whether- as is the position of some of their candidates- they think Northern Ireland was “steeped in bias and discrimination…particularly oppression towards catholic and other minorities”, and if in line with Ian Marshall (imposed as a UUP candidate against the wishes of the local UUP) they also want to see the Irish Parliament sitting in Belfast.
I finish with a quote from Sir Edward Carson, who was a member of the Ulster Unionist Party:
“And of all the men in my experience that I think are the most loathsome it is those who will sell their friends for the purpose of conciliating their enemies…”