Note-Acts of Union ‘humble address’
In trying to justify accepting the continued subjugation and suspension of the Acts of Union, there has been several contrived arguments presented (primarily by the DUP leadership, NIO and their surrogates) which sought to undermine the collective position of Unionism that the damage inflicted to the Acts of Union had to be undone.
It is now suggested that the economic rights conferred by Article 6 of the Acts of Union are somehow different than the text of Article 6 itself. This distortion is of course necessary to get around the fact the none of the damage inflicted on the Acts of Union has been repaired, and this has to be reconciled with the political imperative of the DUP pretending that the Acts of Union have been preserved.
Therefore, the command paper- and recent pronouncements of the DUP leadership- has instead sought to deploy a conjuring trick whereby they claim to have protected the rights conferred by Article 6, but not actually by acting consistently with the words of Article 6, but instead by extrapolating an interpretation which can fit around the Protocol.
The subjugation of Article 6 of the Acts of Union has been determined by the courts to be brought about by (i) the continued application of EU law; (ii) the continued fetters on trade (i.e., having to apply for ‘authorisation’ for a ‘green lane’ and at risk category catching many UK internal market goods in the red lane); (iii) NI’s privileged access to the EU market (and, as set out by McCloskey LJ in Allister, NI being belonging more to the EU market than to the UK).
All these issues remain. Indeed, the DUP now champion all three, therefore accepting and indeed legitimising the very issues which give rise to the ongoing breach of Article 6. It is a volte face of quite epic proportions.
The DUP leadership-endorsed command paper goes so far in its deceit that it pretends the Supreme Court never actually held there was any inconsistency with the Acts of Union. This despite the Supreme Court expressly proceeding on this basis, and the Government having not crossed appealed on these findings from the Court of Appeal. (see paragraph 54 of the Supreme Court judgment in Allister)
It is of note that it was the Government’s senior Crown Counsel who first introduced the concept of “subjugation”- this was the case the Government made both in writing and orally.
They now pretend that, in fact, everyone (including the Supreme Court) has it all wrong, that everyone misinterpreted the Acts of Union, and it actually means something other than it says. There is of course no actual substance to support this ‘vibe’, but rather it is just repeated endlessly and a quarter of the command paper is devoted to saying a lot (much inaccurate) about the Acts of Union, without saying anything at all.
We have also had the utterly ridiculous argument, repeatedly by the DUP leader in Parliament, that restoring the Acts of Union (the agreed position of all unionists) actually meant restoring all tariffs to 1801, and therefore- for example- there would be tariffs on Bushmills whiskey. It is really rather incredible the DUP leader made this argument, so preposterous it is.
The objective of unionists was to undo the damage inflicted by the Protocol (i.e., to restore the Acts of Union to their pre-Protocol status). We sought the subjugation to be reversed.
Of course, if we were to revert to 1801, we’d have to stake a territorial claim on Ireland. That, itself, illuminates the nonsensical nature of this entirely unserious argument.
It can only have merit if you argued ‘the Acts of Union have changed before, and so we support changing them now to fit with the Protocol’. If that were the DUP leadership’s argument, then you could point to changes in support of it. But that was never their argument, and they shy away from the political cost of accepting they are now willing to recast Article 6 of the Acts of Union to interpret it in a manner compatible with the Protocol, rather than the other way around.
The play on tariffs and duties is wholly deceptive. In 1801, Article 6 prohibited future tariffs and duties, other than those specified in schedule 1 to the Act. Put simply, it was agreed that certain specific tariffs and duties would continue (but these would have to be equalised) and these were listed in Schedule 1, but nothing could be added to them. So, even if we followed the newly contrived argument the 1801 schedule 1 to Article 6 of the Acts of Union wouldn’t have permitted the Protocol.
All of this, of course, also ignores the equal footing guarantee, which is shattered by NI being in a different regulatory regime, applying the EU customs code, for a large part of our economy with a border in the Irish Sea.
Schedule 1 to the Acts of Union was repealed in 1878, and since then no tariffs or duties have applied.
This argument is threadbare to the point of desperation and it is wholly inconsistent with all the DUP’s public statements, the seven tests and the legal cases which the party leader endorsed and supported.
The humble address is a deceit. It proclaims fidelity to the foundational importance of the Acts of Union, whilst championing arrangements which leads to the subjugation and suspension of Article 6 which is the core of the economic Union created by Article 6.
For fullness, I attach as Annex 1 the portion of John Larkin KC’s legal opinion on the ‘Safeguarding the Union’ deal which deals with the Acts of Union.[1]
Jamie Bryson
25 February 2024
Annex 1
Extract from John Larkin KC legal opinion on ‘Safeguarding the Union’ deal’s interaction with the Acts of Union
Do these arrangements restore Article 6 of the Act(s) of Union 1800, reversing the modification/subjugation/suspension identified in Re Allister?
I do not understand the use of ‘restore’ in this question to refer to the period immediately after the coming into force of the Acts of Union 1800. I understand ‘restore’ to refer to the period before the Withdrawal Agreement (including the Ireland-Northern Ireland Protocol/now Windsor Framework) came into effect.
Plainly during the currency of United Kingdom membership of the EU there was no modification/subjugation/suspension of Article VI of the Acts of Union. All parts of the United Kingdom were on the same footing as respects trade.
That is no longer true. The Protocol/Windsor Framework was designed to make special provision for Northern Ireland that was not made for the rest of the United Kingdom.
Some play has been made with the continued existence of some tariffs for a period after 1801[2]. It does not appear to have been acknowledged, however, that Article VI made specific provision for such tariffs as appears from the words from that article quoted below:
That all articles the growth, produce, or manufacture of either country, (not herein-after enumerated as subject to specific duties) shall from thenceforth be imported into each country from the other free from duty, other than such countervailing duties . . . . . . as shall hereafter be imposed by the parliament of the united kingdom in the manner herein-after provided; . . .
The words omitted were removed by virtue of the Statute Law Revision (Ireland) Act 1879. As is well known the nineteenth century exercise of statute law revision involved the removal of legislative provisions that had clearly become obsolete. It is safe to say, therefore, that by 1879 at the latest there was no specific duty carried over from the pre-1801 arrangements.
Further, as the passage from Article VI quoted above makes clear, duties can still be imposed on goods flowing between the two parts of the United Kingdom but they must be equalised (“countervailing duties”) and imposed by Parliament, thus maintaining the general ‘equal footing’ guarantee at the core of Article VI.
In paragraph [185] of the Court of Appeal judgment in Re Allister [2022] NICA 15 the Lady Chief Justice identifies Articles 5 to 10 of the Protocol (the effects of which she summarises at [141] to [143]) as supporting the “valid argument that the EUWA 2018 as amended conflicts with the same footing provision in Article VI because the citizens of Northern Ireland remain subject to some EU regulation and rules as part of the withdrawal framework which does not apply to other citizens of the United Kingdom”.
She puts the matter this way at [157]:
“In practical terms the Protocol also means that the treatment of NI products differs from that of GB products due to the need for border checks and regulation and the application of customs duty. Hence, the claim made by the appellants that NI is treated differently within the UK and that in avoiding a hard border on the island of Ireland an effective border has been created in the Irish Sea between Ireland and Britain.”
These findings by the Court of Appeal were undisturbed by the Supreme Court.
Nothing in these arrangements changes Articles 5 to 10 of the Protocol/Windsor Framework; nothing in these arrangements changes the impact of the Protocol on Article VI of the Acts of Union 1800. While Annex A of the Command Paper seeks to persuade the reader that Article VI is not as important as many people have considered it, and still consider it, to be, nothing in the Command Paper can alter in the least either the analysis of the Northern Ireland Courts of the guarantee created by Article VI or the subjugating/suspending effects of the Protocol on Article VI.
Article VI of the Acts of Union was designed to achieve for Great Britain and Ireland what had been achieved by the first part of Article XVIII of the Scottish Union 1707 for England and Scotland. Nothing has occurred to Article XVIII in respect of trade and duties that resembles what has happened to Article VI.
Only a negative answer can be given to this question.
[1] Legal opinion commissioned by Ben Habib, Baroness Kate Hoey, Jim Allister KC and Jamie Bryson.
[2] This is one of the themes of Annex A of the Command Paper