by Jamie Bryson
In order to achieve a solution to the present political and societal issues facing Northern Ireland due to the pernicious impact of the Protocol, and its new implementing ‘Framework’, the Government must take substantive steps to restore Northern Ireland’s place in the Union both symbolically and, most importantly, in substance.
The fundamental root of the problem remains the continued application of EU law, which- as a branch of this- gives rise to the ‘red lane-green lane’ concept.
It is constitutionally absurd to implement the ‘two-lane’ concept within the Windsor Framework, because to do so by default makes NI part of the EU regulatory zone (see OCR 2017/625), unless ‘authorisation’ is obtained (see Article 7 and 9 of the UK-EU joint committee decision).
The ‘green lane’ is a misnomer. It ought not to be the case that a citizen of the United Kingdom is required, for “customs purposes” (see Article 9 (2) of the UK-EU joint committee decision) to provide trading information and obtain authorisation to trade freely within the UK internal market.
Rather, the concept should be reversed. Those who wish to trade with the EU, should be required to ‘opt-in’- on pain of criminal penalty- as authorised traders, and at that point would voluntarily assume the obligation to follow the relevant EU law applicable to that specified area of trade.
Those- in GB and NI- who are not trading with the EU, must be by default subject to UK law, save for if they ‘opt-in’ as an EU trader.
This concept would apply dynamic EU law to those trading with the EU, and UK law to those who aren’t. That is a balanced compromise which respects the rights and aspirations of all communities in Northern Ireland, and most importantly it is a concept which is compatible with respect for the constitutional integrity of Northern Ireland’s place in the Union.
The solution is modelled on the citizenship concept in the Belfast Agreement which squared the national identity circle by conferring upon those who wished to be Irish the entitlement to be so, and be recognised as such, without imposing this upon those who are British. It created a citizenship ‘junction box’.
As it presently stands, EU law applies to Northern Ireland by default, with the only mitigation (and mitigation is just that, it isn’t a defence) the so-called ‘Stormont brake’. This ‘brake’ confers such broad discretion on the UK Government, contrary to their bold claims otherwise, and creates so many layers of bureaucracy, that in practice it is effectively useless.
In any event, if the ‘opt-in’ EU law concept was applied, then there would be no real pressing need for the Stormont brake, because those who wished to trade with the EU would voluntarily assume the obligations to follow EU law.
It is this issue- the continued application of EU law- which must be resolved. If it is, then by default the constitutionally incompatible requirement to obtain ‘authorisation’ to trade freely via the green lane would no longer be necessary, and this could be reformed.
In equal terms, the fundamental breach of the Acts of Union (via the continued application of EU law, and thus NI being in the EU regulatory regime for certain areas of trade) would be remedied.
To avoid the difficulty of business having to have two supply chains, as a matter of domestic law the UK could recognise both EU and UK standards, allowing businesses trading within the UK to- by free choice- chose which one to follow.
The means achieve this solution is via domestic legislation which does the following:
- makes EU law excluded in relation to goods remaining within the UK internal market (i.e., for goods in NI not going to the EU, then only UK law would apply), with the ‘at risk’ concept replaced with a requirement for those trading with the EU to ‘opt in’ and obtain authorisation to do so, with criminal penalties for failing to obtain the necessary authorisation. This authorisation would come with the obligation to dynamically follow EU law;
- Restores the primacy of the Acts of Union by making that foundational constitutional statute applicable in relation to those trading within the UK internal market (and who are thus excluded from the Protocol provisions of Article 5), notwithstanding s7A of the European Union (Withdrawal) Act 2018. Put simply, the Acts of Union prevails over the Protocol in relation to those trading within the UK internal market.
This, of course, could be (in order to save face for the UK and EU) done under the guise of the implementation of the Framework by reference to the new amendment to Article 6 (2) of the Protocol, inserted by Article 1 the UK-EU joint committee decision, which provides:
‘This includes specific arrangements for the movement of goods within the United Kingdom’s internal market, consistent with Northern Ireland’s position as part of the customs territory of the United Kingdom in accordance with this Protocol, where the goods are destined for final consumption or final use in Northern Ireland and where the necessary safeguards are in place to protect the integrity of the Union’s internal market and customs union.’.
It is absolutely necessary that the Government understand that unless legislation restores the primacy of the Acts of Union (which means dealing with the breaches thereof occasioned by the application of EU law and the imposition of a requirement to ‘opt in’ to the ‘green lane’) then there is no prospect of there being any basis for a return to power sharing.
A piece of legislation which is merely symbolic is not going to wash; it must be of real substance and restore Northern Ireland’s place in the Union. Anything less than that, and the Government ought not to bother.
It really is simple: there is no basis for power sharing until the Acts of Union are restored, and the principle of consent operates as promised to the unionist community in 1998. That means defining what is meant by Northern Ireland’s status as part of the Union, ensuring that no more can you change everything but the last thing in relation to Northern Ireland’s place in the United Kingdom.
The solution of excluding from the requirement to follow EU law those who are trading solely within the UK internal market has the support of unionist parties, all of loyalism, and the loyal orders. The prize for being able to deliver such a reasonable outcome for the Government is power-sharing and stability in Northern Ireland.
It is their choice.