By Jamie Bryson
Peter Robinson is a figure of immense standing with the unionist family, who was a key political leader over more than four decades. His views and strategic analysis is always worthy of careful consideration.
However, because Mr Robinson is a figure of such standing, it is even more alarming when his analysis is so fundamentally in error. And, given the credibility the views of Mr Robinson carries, it is important to methodically and clearly explain why the propositions he has advanced as wholly unsustainable.
In his contributions over the last 24 hours, Mr Robinson seems to suggest three things: (i) that EU law is not the issue; (ii) that NI could have ‘the best of both worlds’ by being in the EU and UK market; and (iii) the Assembly could somehow be a ‘base’ to challenge any remaining issues with the Protocol.
The first point to make is that none of those propositions are compatible with the DUP’s seven key tests.
It is well established that, as a matter of law, the Act(s) of Union is the Union. It is further established by the Supreme Court that the Acts of Union are “subjugated” and “in suspension” for so long as the Protocol (and Framework embedding it) remains.
The cause of this subjugation includes the continued application of EU law to NI, creating a differential regulatory framework in NI vis-à-vis GB and therefore necessitating a customs border partitioning the United Kingdom. If EU law applies internally within the UK market, then so too- as an unavoidable consequence- must the Irish Sea border remain.
Mr Robinson, speaking to David Thompson political editor of the Newsletter, also suggested that the issue was “whether EU law or UK law had supremacy”. The answer to this is found via section 7A of the EUWA 2018 which is an all-conquering provision giving the Protocol (and Framework) complete supremacy over all other UK law- both retrospective and prospective.
This is confirmed, emphatically, by the judgment of McCloskey LJ in Allister et al at paragraph  which stated, inter alia:
“…in those areas in which Articles 5-10 of the Protocol apply, specified provisions of EU law govern with unabated force. This means that in those areas the courts must apply the supremacy of EU law…”
That the continued application of EU law amounts to a breach of the Acts of Union is confirmed in the first instance Allister et al judgment at paragraph  and in the Court of Appeal judgment in the same case at paragraph  and -.
Of course, in order to have the so-called ‘best of both worlds’ Mr Robinson appears to champion, this requires- as a condition precedent- the continued application of EU law. And so, this in of itself conflicts Article 6 of the Acts of Union, but indeed so too does the concept that NI- alone in the UK- would have a privileged trading relationship with a foreign entity amount to a stand-alone breach of Article 6.
It is simply impossible- in an intellectually honest way- to reconcile Mr Robinson’s propositions with restoring the Acts of Union, and thus the DUP’s first of seven key tests. It is also impossible to reconcile it with the third, because if EU law still applies and NI has ‘dual market’ status, then the Irish Sea border will not only remain, by dynamically harden.
The best of both world’s concept rests upon NI alignment with EU law (which, in truth, the Stormont brake or even the sovereign UK Government is powerless to ultimately veto such as the way by the Framework treaty is constructed and flows into binding UK law via section 7A).
This means, incrementally, NI will become ever more tightly bound within the noose of an economic United Ireland, with trade and governing law increasingly diverging from GB and converging with the EU via the gateway of the Republic of Ireland.
Accordingly, it is the deceptive lure of the ‘best of both worlds concept’, which is based on fundamentally flawed and unconstitutional foundations, which in fact poses a great danger and is the most alarmingly misguided of Mr Robinson’s comments.
The former DUP leader also talks about using Stormont as a base by which to press for further change. I do hope Mr Robinson at least had the courtesy to thank Doug Beattie for lending him his clothes.
This argument misunderstands the Protocol and Framework. The obligation in Stormont is to implement, and thus embed, the offensive provisions which subjugate the Union. This is beyond any doubt (see JR181 (3) and Rooney).
How does one both challenge and implement simultaneously?
Put another way, how can one be a fireman and an arsonist at the same time?
It is clear Mr Robinson is seeking to create momentum behind those who have set their mind on returning to Stormont, for various reasons- including some selfish- and at this stage there is little such persons wouldn’t accept in order to achieve that objective.
The DUP’s tests, and the core shared unionist objectives, have been framed as pure questions of legal reality. What Mr Robinson and others are now trying to do is shift the terrain, making these matters questions of more abstract political theory.
This is so because a terrain of more abstract political theory allows for fudge, wriggle room and making more generalised arguments- sidestepping the more rigid legal tests (upon which the seven key tests and core unionist demands have been based).
In short form, those who want to now surrender on the fundamental legal tests which underpin the DUP mandate and unionist anti-Protocol position, are seeking to do so by instead framing the issue as one of abstract politics.
Whilst the law is what it is, and leaves no room for manoeuvre, a more political terrain allows for spin, subjective analysis and re-framing of that which were once fundamental tests into something different altogether.
Those who say an internal unionist civil war over the most fundamental of principles has started are not quite correct. Instead, what is happening is that there is a manoeuvres afoot trying to set the terrain over which such an almighty battle is going to be fought.
It is important that the future approach of unionism is determined by analysing the issues, the promises, the commitments and the mandates, with intellectual honesty.
There may well be an argument (I wouldn’t agree with it) that as a matter of abstract political theory it is better, for the future of the Union, to sacrifice rigid legal constitutional principles now for the greater good. But if some want to make that argument, then at least be honest about it. Don’t pretend you are acting compatibly with the Acts of Union, don’t pretend you are meeting the seven key tests which- over two elections- the vast majority of unionists voted for, and most of all don’t pretend the approach you are advocating removes the Irish Sea border.
We haven’t come this far, to only come this far.