
By Jim Allister KC MLA
Above all what the Donaldson deal does is accept and embed a radical recasting of the Union so that Northern Ireland is no longer a full part of the United Kingdom.
Whether it is the UK as constituted by the Acts of Union or the USA as established by its constitution, two related fundamentals denote what it means to be an integral part of such a union. First, the equal citizenship of being governed only by laws made in your own country and second, being defined by a common external border which doubles up as a customs border.
The Protocol, of which not word is changed, radically upends both of these fundamental bulwarks and thereby radically diminishes the Union.
Plainly, NI is no longer exclusively ruled by laws we make in our own country and which we can change. Our entire goods and agri-food economy is now ruled by the foreign laws of the EU. This of itself is a grave assault on our constitutional position which is made of even greater constitutional significance because the identical laws govern these sectors in the Republic. In these areas we are in dynamic alignment, not with GB, but with the territory that aspires to our absorption.
It should be noted the much vaunted ‘Stormont Brake’ is impotent to change any of this, because it does not apply to the 287 EU laws put into binding effect in NI by Art 5 and Annex 2 of the Protocol. So, in perpetuity, Ni is left subject to the foreign rule of foreign laws and with that comes the jurisdiction of the ECJ.
In constitutional terms this makes NI a condominium: partly ruled by UK laws and partly by enforced EU laws. Such is a radical upending of the Act(s) of Union that secured our place in the UK. The Donaldson deal far from changing any of this, signals DUP acceptance of and support for this dangerous recasting of the Union.
The position on the border is equally dire. The Protocol, which the DUP is now content to implement, achieved what the IRA could not achieve – it pushed the border to the Irish Sea! That is a sobering reality.
We now have a partitioning Irish Sea border imposing EU tariffs, checks and paperwork on free trade from GB. Raw materials for our manufacturing industry come through the red lane, as if they were coming from Bolivia, rather than Britain. The presumption in the Protocol is that all goods are ‘at risk’ of progressing into the Republic and thus checks are required. The ‘green lane’ still exists, though its title is changed, and here to bring goods from GB businesses must be in a ‘Trusted Trader Scheme’ and make declarations of commercial details.
The very fact you have to be in a Trusted Trader Scheme to trade within your own country gives the lie to the pretence that free trade has been restored. ‘Zero checks and zero paperwork’ is spin with zero truth. When border posts continue to be built at our ports to check goods coming from GB, then, you know the Irish Sea border has not been removed, but, tragically, has been accepted by the DUP!
Far from our place in the Union being restored, it is our place as EU territory that has been underwritten, both by NI alone being in the EU Single Market for goods and subject to the EU Customs Code which decrees GB a foreign country.
It is not political spin which matters, but legal realities. The High Court in Rooney-v-Poots confirmed the applicability of EU Regulation 2017/625 and that under it NI is to be treated as EU territory! Likewise the UK Supreme Court ruled the vital twin pillar of the Union, Art 6 of the Act(s) of Union, is in suspension because of the primacy of the Protocol. The Donaldson deal does nothing to reverse these legal and constitutional realities.
The dismantling of our Union continues. Well done Jeffrey!