by Jamie Bryson
This article will refer to the contribution as being that of Mr David Brooks MLA, given that is whose name is on the article. It is hoped, given his new-found purported expertise on these issues and new vice-chairmanship appointment to the Windsor Framework committee, that the DUP press office will be offering Mr Brooks to the media to be scrutinised on these issues.
Indeed, the door always remains open to debate any of these issues in public, and perhaps Mr Brooks is just the man to engage in such a discussion!
The article in Mr Brooks’ name begins in the second paragraph with that which is either another DUP effort to mislead via a conjuring trick, or a worrying illumination as to the complete lack of understanding as to these issues on the part of Mr Brooks.
The opening gambit is that the DUP did not want to end EU law in NI. The party leader and many of the most senior party members will be surprised to hear this.
Indeed, the party leader identified the continued application of EU law as the “core issue” in a February 2023 interview with Tracey Magee of UTV. It is surprising to now discover the DUP did not want to deal with the “core issue”.
Mr Brooks justifies the acceptance of EU law by saying this is because “there is a massive amount of Retained EU law across all the UK”. It seems concerning to have to explain to Mr Brooks, if indeed he actually believes what he has put his name to, and it isn’t just another DUP effort to deceive, that despite the confusion engendered by the name of that corpus of law, Retained EU law is not actually EU law.
On Exit Day, previous EU law was essentially copy and pasted into domestic law. It then became UK law, which could be amended or repealed at will by the UK Parliament. It is under the sole judicial jurisdiction of the UK courts.
In contrast, the EU law applying in NI because of the Protocol/Framework (primarily Annex 2 on trading issues and via Article 2 and Annex 1 on ‘citizens rights’ issues) is EU not UK law. Neither Stormont nor the UK Parliament could amend or repeal this EU law, and it is under the supervision of the CJEU (European Court of Justice). It is worrying this needs to be explained to Mr Brooks.
In addition, the DUP- at one time- purported to be seeking to restore (to pre-Protocol status) the Acts of Union. This itself requires more detailed scrutiny, and a full essay will be devoted to the DUP’s dishonesty on this issue next week.
However, the subjugation and suspension of Article 6 of the Acts of Union comes about because of the inconsistency with the Protocol/Framework arrangements. This has been held by the court (in a case the DUP supported, so perhaps they ought to read the judgments) to be brought about by (i) the continued application of EU law; (ii) the fetters on trade GB-NI due to NI being de-facto in the EU single market; (iii) the privileged access to the EU market which places NI on an unequal footing to the rest of the UK.
The DUP now (i) support the continued application of EU law; (ii) are content to implement the fetters on trade via the Irish Sea border; and (iii) as is clear from Mr Brooks’ next argument, they party leadership also supports privileged access to the EU single market (which is the very thing which necessitates the continued existence of the Irish Sea border).
That the DUP now accepts and indeed champions each of the very things the courts identified as causing that which the DUP once accepted was inflicting serious and irreversible constitutional damage on NI is rather remarkable.
Mr Brooks then goes on to champion the great achievement of securing the Stormont Brake and the amendment to Article 13 of the Protocol. He seems not to understand this was in the Windsor Framework; the same Windsor Framework the DUP rejected, before a year later accepting all its core architecture. If this was such a game-changing innovation, why did the DUP not surrender in 2023, rather than waiting another year?
Mr Brooks then says the DUP leadership has ended the automatic application of EU law via the Stormont Brake. This is simply false, and it is worrying the DUP don’t know this.
Firstly, the Stormont Brake only applies to a limited amount of the EU law applying via the Protocol, indeed even around 42 EU Acts in Annex 2 are excluded from its operation.
Secondly, the default presumption is that amended EU law will apply dynamically, the Stormont Brake- with all its exacting conditions- if pulled merely ‘pauses’ the EU law, and whilst this takes place the EU law as previously applied remains in force. This is important: the Stormont Brake can’t remove EU law, even if it worked, it can merely ensure NI is subject to the old rather than the new EU law (to be addressed below).
Thirdly, the final say doesn’t rest with the UK Government let alone Stormont, it rests with an international arbitration body, and the UK has bound itself in domestic and international law to comply with its judgment. If the judgment is against the UK, the EU law applies.
Mr Brooks then continues by referring to “unionist detractors” speaking of the Stormont Brake causing divergence from EU law as “evidence” that the Stormont Brake can protect NI from EU law. It is worthwhile pausing, reading that previous sentence again, or better still, reading the version in the article in Mr Brooks’ name.
The Stormont Brake, even if successfully deployed, leaves the original EU law in place. It just stops the amendment. The divergence from EU law of which Mr Brooks speaks is divergence between two versions of EU law. It is all still leaving NI subject to EU law.
This is, to be frank about it, levels of idiocy which should concern all unionists.
Mr Brooks then says the Stormont Brake relies on the Government we can’t trust being on a legal duty to act, and this is used as a point against the Brake by “our detractors” (I presume by ‘our’ he includes all those in his party who actually understand these issues and thus have pointed out the problems).
This point is then deployed in favour of returning to implement the Protocol when Mr Brooks justifies that return by saying the “detractors” actually want the DUP to boycott devolution and thus place control in the hands of that very same Government we so distrust.
It appears Mr Brooks has forgotten that only the paragraph before he commenced this portion of his argument by reference to the fact the Stormont Brake relies on that Government to act upon the mechanism.
Put simply, Mr Brooks ends up confusing himself: we can’t trust this Government so must return to implement the Protocol ourselves, because only by doing so can we make use of the Stormont Brake, which relies on the Government we can’t trust acting”.
I am not sure Mr Brooks realises he has just gleefully grabbed a double edged sword.
Mr Brooks then calls for those who want to end EU law to “be honest”. Perhaps he ought to review his party’s own comments on EU law, and then start us off by putting into the honesty box an essay of his own explaining how we got from those positions, to that set out in ‘his’ article.
This is remarkable chutzpah coming from a pro-Surrender Deal DUP MLA. These are the people who have falsely claimed- among other things- the Irish Sea border is gone, the green lane is gone, there is “zero checks and zero customs paperwork” for goods destined for NI, and the Acts of Union are protected.
Mr Brooks then dismisses the issue of “trivergence” (which was in fact exposed in part by two DUP MLAs), which is essentially the ultimate outcome of the Stormont Brake. This is where NI doesn’t adopt the new version of the EU law and so is subject to the old version of EU law, GB has a different UK law, and the EU applies the new EU law. So, NI is stuck in a hybrid no-mans land between two different regulatory systems.
What Mr Brooks and his fellow-travellers in the DUP don’t seem to grasp is that the argument will become that NI ends up in the worst of all worlds, and so the Stormont Brake actually ends up as a lever to force compliance with dynamic alignment.
This should be no surprise as credible and independent legal opinion (of which the DUP haven’t been able to produce a single one) from John Larkin KC and the ERG ‘Star Chamber’ all set this out in February/March 2023.
The dismissal of the Trivergence issue comes via a claim the DUP has secured a new “safeguard” against GB divergence. This mainly involves a Minister saying whether any proposed legislation will create regulatory barriers GB-NI (and as we have seen with the Government’s deceptiveness, black can be presented as white very easily). There is no obligation to even do anything if such barriers are created. It is, at the very best interpretation, a provision to force Ministers to own what they’re doing, which as evidenced by the Protocol and Framework, most have no issue doing so.
This is then tied into a claim that if the Government permanently vetoes EU law, they will have accepted it would create trade barriers.
It, again, seems worrying to have to explain to Mr Brooks that the Stormont Brake doesn’t give the UK a veto over EU law. The final say rests with international arbitration unless the EU consent, and if the arbitration ruling is against the UK, the EU law automatically comes into force on the first day of the second month subsequent to the ruling.
This is all I am sure becoming very confusing, it seems to now be suggested that if the Stormont Brake works, that this then automatically meets the criteria for the divergence screening and making of a Ministerial statement…and 1,2,3 you’re back in the room, there will be no divergence.
It is difficult to even follow this convoluted argument which is based on multiple misunderstandings of how the Stormont Brake works in law. Its central failing remains that it is based on an assumption that there is some kind of binding safeguard against GB divergence. There patently isn’t, and the Government has even confirmed this.
Finally, Mr Brooks goes on to attack Jim Allister KC. Mr Allister is a big boy and can defend himself. I simply say this: put David Brooks across the table in a TV studio or in a committee room against Jim Allister, see what happens.
It is disappointing that half-an-hour has had to be spent writing this article to respond to Mr Brooks. It would have been a derogation not to have explained, patiently, and with greater courtesy than the nonsense deserved, why what appeared in today’s Newsletter serves only as a reminder of how fundamentally confused the pro-Surrender Deal wing of the DUP are on these issues, or how deceptive they are willing to be in trying to mislead the unionist/loyalist community.