By Jamie Bryson
I feel compelled to respond to the article published in the Belfast Telegraph by Rev Mervyn Gibson. This is not, in any shape or form, a personal attack on Rev Gibson or to in any way question his unionism.
It is merely a counter-argument because I believe he is completely wrong, and it should be read as such. This is an important issue for unionism, and robust debates and challenging of each other’s viewpoints should be encouraged. That need not lead to matters descending into personal abuse.
Rev Mervyn Gibson makes clear that his analysis is provided in a personal capacity, rather than on behalf of the Orange Order.
I agree with Mervyn that each unionist must be afforded the opportunity to come to their own view and, as he has bravely done, set out their conclusion in public and the reasons for it. This allows for a full and frank debate, and proper scrutiny of competing arguments.
In arriving at his personal decision to back the deal, Rev Gibson sets out four questions he posed to himself.
I address each in turn.
Rev Gibson says the ‘green lane’ has gone and ‘unfettered access’ (presumably in this context he means internal UK trade GB-NI) is restored. These conclusions are demonstrably false.
The green lane was (and is) essentially a special trusted trader scheme to permit traders to apply for authorisation to be able to trade without being subject to a full EU customs border (the red lane). Its structure is set out in the Windsor Framework, given effect by Joint Committee decision 01/2023 (particularly Article 7-9 thereof).
Let us be clear: to trade GB-NI for goods remaining in NI, you must apply (providing information for “customs purposes”) and seek ‘authorisation’ to exercise the right to trade internally in your own country.
They have renamed this scheme the ‘UK Internal Market scheme’. This renaming is all very patriotic, but the ‘green lane’ structure remains firmly in place.
Therefore, I defeat Rev Gibson’s contention on this point with a very simple (rhetorical) question: if the ‘green lane’ (now called UK Internal Market scheme) is gone, then what are traders applying to access, to trade GB-NI?
This simple point equally defeats the unfettered access contention. If there was unfettered GB-NI trade, such as there is between two locations in GB, then how come a trader must apply to seek authorisation to engage in GB-NI trade outside of the red lane?
Rev Gibson then says “the red lane never concerned me. It’s for goods travelling to the EU”. This is simply wrong. The red lane catches all goods falling into the ‘at risk’ category, which is set by the UK and EU via the joint committee. Therefore, many materials and goods which are not for the EU at all, are- due to the requirements imposed by the EU in the ‘at risk’ criteria – nevertheless in the red lane.
The ‘at risk’ criteria is within the remit of the joint committee, therefore extending executive powers, or at least a veto, to the EU over internal UK trading arrangements. The EU are co-equal administrator of the Irish Sea border.
A core issue which Rev Gibson had identified many times before the deal was the continued application of EU law. I am not sure from where Mervyn derives his belief that EU law no longer applies (as not even Sir Jeffrey Donaldson, who hasn’t been short of outlandish claims, has asserted this); it applies unabated.
The full swathe of EU law listed in Annex 2 of the Protocol, alongside Annex 1 and all that which applies due to the provisions of Article 2, continues in NI alongside the jurisdiction of the ECJ in these areas.
The Stormont brake does not, as Sir Jeffrey Donaldson has claimed, ‘break dynamic alignment’. The EU law still by default continues to flow. Stormont can merely ask the UK Government to pull the brake if exacting conditions are met. If the Government accede to this request, then they must discuss the matter with the EU and if the EU do not agree, the matter is finally determined by international arbitration- not even the sovereign UK Parliament, let alone Stormont.
Rev Gibson seems to have been taken in by the claim- posted on Sir Jeffrey’s twitter- that the deal had “abolished” the UK duty to have regard to an “all-Island economy”. This is inaccurate. The command paper, which has no legal force, commits to repealing this duty. There is no legally binding commitment nor timeline for doing so. It remains, as it sits now, in force.
More fundamentally, NI is aligned with the Republic of Ireland in the areas of law applying due to the fact NI is de-jure in the EU single market for goods. In addition, whilst nominally being in the UK customs territory, NI applies the EU customs code, and as established in Rooney and JR181 (3) v Poots, is to be treated as EU territory.
None of these issues are remedied by the deal.
In so far as Rev Gibson’s reasons for supporting the deal are based upon the conclusions he set out in his article, those reasons are built on sand for the simple reason that he has fundamentally misdirected himself as to what this deal does.
Indeed, even Graham Gudgin who broadly supports elements of the deal, writing in Briefings For Britain, nevertheless makes clear:
“Claims that no Irish sea border now exists are however exaggerated. Firms still have to register as trusted traders to avoid paperwork and checks, and a pan-UK system of labelling goods as ‘UK only’ has had to be introduced. Neither of these would necessary without a trade border and do not exist for instance for trade between England and Scotland.”
It is important to say that all which I have set out in this article is supported by the independent legal opinion of John Larkin KC, NI’s former Attorney General, which was published on Friday. The conclusions of Rev Gibson which marry up with the increasingly outlandish claims of Sir Jeffrey and those in his wing of the DUP, aren’t supported by a single legal opinion from any independent source.