By Jim Allister KC MLA
Leader, Traditional Unionist Voice
Above all the Protocol controversy is a sovereignty issue. By Art 5 of the Protocol, NI is both put under the EU Customs Code, causing GB to be deemed a third/foreign country whose goods must be checked at the partitioning Irish Sea border (itself established by EU, not UK, law), and our economy and commerce are ruled by hundreds of evolving EU laws (as set out in Annex 2 of the Protocol – the same Single Market laws as ROI with which we are now aligned).
This is the very essence of colonial rule – ruled by laws we don’t make and can’t change!
And, lest there is any doubt, HMG is on record in our High Court (Rooney-v-Poots) as arguing and accepting that because of EU regulation 2017/625 (to which NI is subject) NI is to be regarded as the entry point into EU territory!
It was no surprise, therefore, to hear Lord Justice McCloskey in our Court of Appeal decree: “NI belongs more to the EU internal market than the UK internal market. Resulting alterations in trade patterns are inevitable.”
And, more than that, so long as section 7A of the EU Withdrawal Act 2018 stands, then so long will EU law flow unhindered into effect in NI, because it is the legal conduit whereby the iniquitous Protocol is delivered. Legislation which does not reverse section 7A will not undo the destruction wrought to our constitutional position by the Protocol.
Faced with these legal realities, it was no surprise that the Supreme Court had to hold that Art 6 of The Acts of Union has been put into suspension by the superior status of the Protocol. That is something no unionist can ever come to terms with and certainly not acquiesce in by operating Stormont in that Union-dismantling context.
Little wonder, nationalism identifies the Protocol as the pathway to Irish unity through the stepping stone route of creating an all-Ireland economically, aided by a Protocol-implementing Stormont.
So, any DUP/Government deal which does not reverse the EU’s sovereignty grab and remove the Irish Sea border which arises from our designation as EU territory and GB as a third country, will change nothing of substance, nor come close to meeting the DUP’s mandated seven tests. Unionism cannot afford another humiliating climbdown – a climbdown which would entail accepting the transition trajectory of the Protocol.
Nor, having fought two elections on the basis of its seven tests, has the DUP any mandate to settle for less! I might add, it is not about a comfort blanket of future-proofing, while pretending that the horse hadn’t bolted the day the Protocol was signed.
The constitutional damage of the Protocol must be faced up to and reversed. To be clear, that means:
- No Irish Sea border or subjection to EU Customs Code;
- No colonial rule through foreign laws we don’t make and can’t change;
- The full reinstatement of Art 6 of the Acts of Union and complete restoration of NI’s place, both constitutionally and economically, into the United Kingdom.
Nothing less will do.