by Jamie Bryson
This week the long-awaited legislation was published. This was supposed to be a big moment for Sir Jeffrey Donaldson, the jewel in the Crown of his Surrendering the Union deal. It all fell flat when it became apparent that the legislation carried no resemblance to the bold claims Sir Jeffrey had made.
Undeterred from that reality, the DUP leader simply took to Twitter to repeat those same claims, seemingly in an effort to, putting it bluntly, hope that by repetition of a lie, it would become accepted as the truth.
The legislation does not, at all, provide any requirement for “zero checks and zero customs paperwork on goods destined for NI” as Sir Jeffrey Donaldson claimed. This claim is unsustainable, and is proven to have been demonstrably false, by today’s legislation itself, which- bizarrely- has been heralded by Sir Jeffrey (notable by their absence are any other senior DUP figures).
Firstly, the claim as to “zero checks and zero customs paperwork on goods destined for NI” could never be delivered because the ‘red lane’, which is a full EU customs border, encompasses many goods destined for NI, but which are caught in the red lane due to the ‘at risk’ category.
Secondly, the legislation itself, at Regulation 2 (2) makes plain that its purpose is the implementation of the EU Withdrawal Act and, particularly Article 5, 6, 7 and Annex 2 of the Protocol (which is referred to as the Windsor Framework).
The Irish Sea border is created and made necessary by Article 5 of the Protocol. This is what the DUP are welcoming legislation implementing.
It is Annex 2 which lists the hundreds of laws imposed on NI which we cannot remove or change. It was this EU law identified by Sir Jeffrey in March 2023 as the “fundamental issue”. There hasn’t been one word of Annex 2 altered, and none of the mechanisms in either the Windsor Framework or Surrendering the Union deal address Annex 2 at all.
Therefore, applying Sir Jeffrey’s own yardstick, he has returned to Stormont without the “fundamental issue” being addressed.
Thirdly, the regulations are subject to section 7A of the EUWA 2018, which essentially gives the Protocol/Framework supremacy in domestic law over every other piece of UK law, whenever made. That means that unless the regulations disapplied the effect of section 7A, they would yield to those obligations anyway.
It is for these reasons that Jeffrey Donaldson’s claims are completely false as to “zero checks and zero customs paperwork”. Instead, he has subtly sought to modify his language and now speaks of removing “unnecessary” checks. This is open to wide interpretation. As already set out, full checks and customs paperwork will continue in the red lane, the NIO have already confirmed the same level of checks will continue on the green lane (we obviously are to all pretend that we have forgotten the DUP claimed that the green lane had “gone”) and to even access the green lane (now called the UK internal market system) you must provide information “for customs purposes” (see Article 9 (2) of joint committee decision 01/2023).
It is bad enough that the legislation does not do, or even come close to doing, what Sir Jeffrey claimed (in fact, it does the opposite), but worse than that, it actually goes even further in embedding the Irish Sea border and removing any democratic scrutiny over its implementation.
Readers may recall Sir Jeffrey’s speech in the days prior to the Surrendering the Union deal when he (contriving with the NIO, past and present) launched his all-out offensive against principled unionists. In that, he lambasted us saying despite labelling the Government sell-outs, by opposing a return to devolution we wanted to hand the Government power.
In his telling of the story, only devolution could protect the interests of unionists and so, it follows, Stormont must return.
Aside from the many other frailties with that proposition, it is somewhat hard to reconcile with Sir Jeffrey today welcoming legislation which vests all power in regards implementing the Irish Sea border with the Secretary of State, even going so far as to disapply the Executive cross community safeguards (see Regulation 7 (2)) for significant and controversial decisions.
In a political trick to try and avoid the DUP’s fingerprints being on the implementation of the Irish Sea border (which the DUP leader pretends doesn’t exist), they have contrived with the NIO to get the Secretary of State to take responsibility.
And so, it is now Sir Jeffrey Donaldson that is the one handing all power to the Secretary of State over Protocol/Irish Sea border implementation. How does that sit alongside his reasons for accepting the Surrendering the Union deal and returning to Stormont?
It gets worse, the legislation actually also strips the power of scrutiny on Protocol/Framework implementation away from the Windsor Framework Assembly scrutiny committee. This is some contrast to Donaldson’s claims on how he had fixed the democratic deficit.
It seems plain to anyone with their eyes open that Sir Jeffrey has made claims which are simply unsustainable. It is notable that it appears less and less party members, even those who supported him, are willing to row in behind his ever increasingly bizarre claims.
The media should take every opportunity to ask DUP representatives whether they stand over the Donaldson claims, or whether they are willing to admit the very deliberate effort to deceive the unionist community is not only continuing, but becoming ever more audacious.