By Jamie Bryson
A failed UUP Assembly candidate Stephen McCarthy has taken to Twitter- with increasingly characteristic post election nastiness- to claim that challenging the Service Level Agreement in relation to the implementation of the Protocol (‘Protocol SLA’) was “undermining the UK internal market”.
The logical consequence of this is Mr McCarthy thinks that the Protocol SLA protects the UK internal market.
Indeed, in support of his somewhat bizarre proposition, he seemed to rely on part of Clause 2.1 from the Protocol SLA, which states, inter alia:
“the funding is offered under Article 18 (3) of Regulation (EC) No 765/2018 (as it applies in Northern Ireland) and the Supple and Appropriation (Anticipation and Adjustments) Act 2021 in return for building capacity and capability for product safety market surveillance. This is part of a UK wide approach to ensure only safe and compliant, non-food, consumer goods enter the UK market and to meet the provisions of the EU Withdrawal Agreement and Northern Ireland Protocol.”
It is hard to know where to start with this, but doing the best one can to dismantle the proposition without expending too much unnecessary time or energy.
Firstly, Regulation 765/2018 does not apply in Great Britain (‘GB’), it ceased to apply on Exit Day and was replaced with similar legislation, applicable only to GB. It continues to apply in Northern Ireland because of the Protocol which flows into domestic law through the ‘conduit pipe’ of section 7A of the European Union (Withdrawal) Act 2018 (as amended by the 2020 Act).
It seems obvious to point out that a scheme which operates on the basis of two regulatory systems (albeit similar in terms), one applying as EU law in NI only, and the other in GB, could not conceivably be said to protect the UK internal market: it divides it into separate regulatory regimes.
The error on the part of Mr McCarthy is to take one sentence out of the paragraph, read it in isolation and manage to completely misunderstand the effect of the Protocol SLA.
If the purpose of the scheme was to ensure only that safe and compliant (with UK law) goods entered the UK internal market, and this was under the one UK regulatory scheme (rather than EU law in NI and UK law in GB) and there was no link to the Protocol, that would be one thing. But that is not this scheme.
As pointed out, the existence of two different regulatory regimes separates NI from GB. Moreover, the final sentence of the paragraph in Clause 2.1 makes clear the purpose is to comply with the provisions of the EU Withdrawal Agreement and NI Protocol.
It really shouldn’t be necessary to point out the obvious to Mr McCarthy or the UUP, but here we are.
The UK as a matter of constitutional law is the Union with Ireland Act 1800 and the Act of Union (Ireland) 1800 (the two parallel acts of the old GB and Irish Parliaments, normally referred to as the ‘Acts of Union’).
In 1998, the late David Trimble, stalwart of the UUP and architect of the Belfast Agreement, said “the Act of Union is the Union”. He was plainly correct.
Article 6 of the Acts of Union is the UK internal market.
The Protocol “subjugates” (see Allister et al, Court of Appeal) Article 6 of the Acts of Union.
It follows as a matter of the most compelling logic that the Protocol fatally undermines the UK internal market.
The scheme operates with the express purpose implementing and “enhancing” the Protocol. It also seeks to conduct surveillance and gather intelligence in order to enforce EU regulatory requirements. It states this in plain words in the SLA.
On Mr McCarthy’s case the same scheme which implements the Protocol, which subjugates Article 6 of the Act of Union (which is the UK internal market), nevertheless operates to protect the UK internal market.
Put politely, it is arrant nonsense.
In any event, perhaps Mr McCarthy is unaware- but his party leader Doug Beattie MC MLA pledged- on behalf of the UUP, “unalterable opposition” to the Protocol on Ulster Day (that, in case Mr McCarthy is unaware, is 28th September) in 2021.
This, in case you are confused, is the same Protocol Mr McCarthy thinks implementing and enhancing protects the UK internal market.
The UUP are confused over the Protocol, their messaging is all over the place and in truth they have no understanding of its legal or constitutional implications.
We even reached the bizarre stage during the last May Assembly campaign when the UUP leader made clear the Act of Union was not a red line. How any unionist party could get so muddled that the Union is not a red line is somewhat beyond comprehension.
In addition, we have the repeated assertion by the UUP that the Belfast Agreement institutions should be operated notwithstanding the Protocol, which Lord Trimble stated in his affidavit fundamentally undermined the core basis for unionist support for the Agreement.
The logic of the UUP’s position on that is that despite the core basis for pro Agreement unionism being shown to be a fundamental deception, that nevertheless they must stick with the Agreement. It is so muddled its impossible to even decipher it.
I know I have been critical of UUP silence on this issue, but in hindsight, for their own good (if Mr McCarthy reflects their views, anyway) they should probably stay silent.
As for Mr McCarthy, perhaps the next time he considers offering his hot takes on twitter he will at least try to develop an elementary understanding of the subject matter in advance, lest he bring upon himself and by extension the UUP any further embarrassment.