By Jamie Bryson
The core objective of all unionists must be restoring Northern Ireland’s place in the Union.
This has been the cornerstone of the DUP’s seven key tests- upon which their mandate is based. The party, in the face of an unprecedented siege, has stood firm and as the democratically elected voice of unionism has represented the determination of the vast majority of the unionist electorate in the simple stance: power sharing or Protocol; never both.
But what does our shared core objective mean?
Our place as a full part of the UK has been suspended due to the subjugation and suspension of Article 6 of the Acts of Union: that core constitutional legislation was described (correctly) by Lord Trimble in the following terms:
“The Act of Union is the Union”
The Union is made of two distinct components rooted in the Acts of Union: the economic Union which is found in Article 6, and the political Union found in Article 3 which guarantees the sovereignty of the UK Parliament.
Therefore to subjugate and suspend Article 6 is to demolish a core part of our constitutional identity and rights to equal citizenship. It is as seismic as if, for example, NI was to be suspended from Parliament with no representatives allowed and/or sovereignty was handed over to a foreign entity (its arguable that in practice sovereignty over NI has already in practice been handed to the EU over large parts of our laws).
Therefore, restoring Northern Ireland’s place in the Union means- in a legal sense- restoring Article 6 of the Acts of Union.
In the absence of the Union being restored, there is no basis for power sharing. That has been the collective position of strong unionism
who have united behind the DUP and TUV.
So what is required to achieve this clear and unambiguous objective?
Firstly it is important to explain the difference between two different concepts (lest there be any confusion or blurring of the two).
(i) Restoring the Acts of Union- which is necessary to restoring NI’s place in the Union- means lifting the subjugation and suspension of Article 6. In simple terms, putting it back to its pre-Protocol status.
(ii) It is an entirely different concept to propose protecting Article 6 (or wording for short ‘internal UK trade’) into the future. This concept means accepting the present subjugation and constitutional change, in return for some form of legislative promise not to further diminish what is left of Article 6 going forward.
It is obvious that (i) restores the Acts of Union and thus NI’s place in the Union and removes the Irish Sea border whilst (ii) embeds the subjugation of the Acts of Union and Irish Sea border, but promises not to further diminish the Acts of Union or harden the Irish Sea border.
Based on the clear mandate of the DUP- based on their seven tests- (ii) above wouldn’t even come close to representing a solution. This is so because it would do the opposite to that which is promised in the DUP’s first and third tests.
Therefore such a proposal, which – to be clear- whilst it is what the Government are floating, isn’t a DUP proposal, could obviously never be accepted by any self respecting unionist who had committed to the collective position of restoring the Union. It’s hardly likely the DUP would ever agree to such an outcome, knowing how unsellable it is and more importantly it would be wholly incompatible with the DUP’s tests which I believe the party truly believe in.
By the same token, any arrangement which left the ‘green lane’ in place with requirements to be ‘authorised’ to access it, which as a pre-condition necessitates providing information for “customs purposes” (see Article 9 (2) of the joint committee decision 01/2022) would beyond all doubt mean that the Irish Sea border remains in place .
The red lane is a hard Irish Sea border, the green lane is a soft Irish Sea border. But both are an Irish Sea border.
In explaining their third key test the DUP said:
“Thirdly it is essential that any new arrangements that are negotiated do not constitute a border in the Irish Sea. This is the claim that the Secretary of State made on the 1 January and new arrangements need to see it implemented in deed as well as word. In line with the Act of Union, there should be no internal trade border in the UK. Northern Ireland’s place in the UK Internal Market must be fully restored.”
This is tied in with the first test which requires “fulfilling the guarantee in Article 6 of the Acts of Union”.
Any proposal therefore (such as the Government’s idea) which left the Irish Sea border in place (via the two lanes and subjugation of the Act of Union) would be worthless and come nowhere close to achieving the unalterable commitments.
It is trite to point out that a guarantee in legislation as to future trade, worthwhile as that would be, could not with any intellectual honesty be said to fulfil Article 6 of the Acts of Union (as the legislation would protect only the subjugated version of Article 6, which amounts to very little) or to remove the Irish Sea border.
So what, in my view (and if there’s alternative views as to what the key tests or shared strong unionist position means- this website will facilitate anyone who wants to set out a counter argument) the tests requires is the following:
Firstly, restoring- to its pre Protocol status- Article 6 of the Act of Union.
Secondly, as a key component of restoring the Acts of Union, NI must be wholly within the UK legal and regulatory regime for internal UK trade. Why should a UK citizen, trading solely within the UK- or to another non-EU country- be subject to EU law?
This means EU law must not be imposed on those who do not trade with the EU.
The Stormont Brake doesn’t resolve this, because it doesn’t deal with the large swathe of EU law already imposed, and moreover even if the high bar is passed to pull the brake and even if the UK Government acted in good faith (with this Government; that would be exceptional) then ultimately arbitration under Article 175 of the Withdrawal Agreement could led to the imposition of the EU law regardless of what the nominally ‘sovereign’ UK Government said. That’s an extraordinary debasing of national sovereignty.
Thirdly, removing the soft Irish Sea customs border aptly named the ‘green lane’. There is no sovereign country in the world whereby you must obtain “authorisation”, via providing customs information, to trade within your own country.
The green lane doesn’t protect UK internal trade or remove the Irish Sea border, it embeds merely a softer version of that customs border.
All this of course to appease nationalists who would not tolerate even a CCTV camera on the land border, and so unionists must accept a full blown customs border partitioning the UK. Why does anyone think any self respecting unionist would play along with this debasing ‘unionism must give, and nationalism must get’ agenda?
Those trading with the EU can follow EU law, and there could be criminal penalties for failing to do so. But imposing EU law, or an elaborate customs process, on internal UK trade is a constitutional abomination and a fundamental dismantling of Article 6 of the Acts of Union.
Fourthly, NI must be solely UK territory. At the moment via the Official Control (NI) Regulations 2023 which implements EU Regulation 2017/625, NI is treated as the entry point into and thus part of EU territory (see Article 43 of 2017/625).
This has been confirmed by the High Court (see Rooney and JR181 (3)).
Put simply: (i) restore the Acts of Union to their pre-Protocol status. Lift the subjugation; (ii) end the imposition of EU law on those trading solely within the UK; (iii) remove the soft Irish Sea customs border called the ‘green lane’; (iv) in law make clear NI is to be treated at all times as UK territory.
All of the above requires legislation which applies notwithstanding section 7A of the 2017 Act. Anything which does not do that is worthless, as it will always have to give way to the all conquering section 7A anyway.
There is a legitimate argument to be made around preserving the long term stability of the Union, but the obvious riposte to that is- what version of the Union?
The principle of consent (as set out clearly by Sir Jeffrey Donaldson repeatedly and in DUP’s seventh key test) ought to protect against the salami slicing of the Union. You can’t change everything but the last thing: if you can, then this means the Union will be incrementally dismantled until the point it exists only in name-only.
The Doug Beattie argument (and it is his argument, anyone who adopts it should credit him with it) is that notwithstanding all the constitutional damage, you must implement the subjugation of the Union now, to save the Union in the long term.
Of course once you do that, you have accepted the constitutional change and are left with no leverage. It appears extraordinary any unionist would advocate that, or be foolish enough to think that once an economic United Ireland has been conceded that enemies of the Union wouldn’t be instantly back for more.
Such an ‘appeasement’ strategy of feeding the crocodile is nothing new. In 1938 Neville Chamberlain argued that if Hitler was only given Sudetenland, he wouldn’t seek to conquer anymore.
If the Protocol remains then preserving the ‘Union’ will encompass preserving a diminished Union which includes (rather than equal citizenship) an economic United Ireland, an Irish Sea border and the subjugation of that Union.
In circumstances whereby an arsonist sets your house on fire, you do all you can to extinguish the fire before it spreads. You do not stop the nearest fuel tanker, stand in your garden, and pour fuel onto your home whilst shouting ‘strategy not tactics’.
Therefore, unionism must take a firm stand now. This far and no further. Enough is enough.
You cannot do that whilst collaborating in inflicting the fatal wound upon the Union.
Power sharing or Protocol, never both.