The Official Control (Northern Ireland) Regulations 2023 are constitutionally abominable and demonstrate that much like the Protocol itself, the Government says one thing, but does another.
Whilst purporting to be ‘negotiating’ in an effort to retrieve the sovereignty surrendered to the EU over Northern Ireland, the UK Government today passed Regulations to empower them to take steps to implement Article 64 (1) of Regulation 2017/625.
Let us look what Article 64 (1) of 2017/625 requires. It states:
“1.Border control posts shall be located in the immediate vicinity of the point of entry into the Union and either in a place which is designated by the customs authorities in accordance with Article 135(1) and (2) of Regulation (EU) No 952/2013 or in a free zone.”
The border control posts required by Article 64 (1) are to be located “in the immediate vicinity of the entry point into the [European] Union”.
And yet where are these border posts to be put? The answer is, in Northern Ireland.
Therefore, it follows, Northern Ireland is treated as part of the EU customs territory, rather than that of the United Kingdom.
That position was copper fastened by the judgment of Colton J in Rooney and JR181 (3), which found the UK was “not to be treated as a unitary state”, and that NI was to be treated as the entry point into the EU, with ‘UK’ accordingly interpreted as meaning Great Britain.
The finding of Colton J is plainly inconsistent with the text of 2017/625 itself which expressly defines entry into the Union in the following way at Article 3 (40):
“‘entering the Union’ or ‘entry into the Union’ means the action of bringing animals and goods into one of the territories that are listed in Annex I to this Regulation from outside these territories, except in relation to the rules referred to in point (g) of Article 1(2) for which these terms mean the action of bringing goods into the ‘Union territory’ as defined in the second subparagraph of Article 1(3) of Regulation (EU) 2016/2031;”
When we turn to point 28 of Annex 1, the territory of the United Kingdom is defined as the United Kingdom of Great Britain and Northern Ireland.
Therefore, on any reading of 2017/625, the text actually requires that border control posts should be at the point of entry into the EU, which- according to Annex 1 (28) is not Northern Ireland because that is part of the UK.
However, Colton J legislated from the bench and essentially rewrote 2017/625 in order to treat UK as Great Britain and NI as the entry point into the EU.
But the Protocol itself confounds Colton J’s reasoning. Section 7A of the 2018 Act gives Article 4 of the Protocol domestic law effect along with the rest of the provisions. That expressly states that Northern Ireland is part of the customs territory of the UK, but yet Colton J- and the Government- have disavowed Article 4 of the Protocol, instead pulling together various sleight of hand provisions in the Protocol to give it some higher purpose, which effectively amounts to colonising Northern Ireland as part of the EU.
Even Article 5 (1) of the Protocol, in the ‘at risk’ concept, recognises that NI and the EU are two distinct entities, but yet Colton J- urged on by the Government- has managed to treat NI as the entry point into the EU.
The Government ought to be forced to confront what they have done and are doing.
If they say that 2017/625 requires border control posts in Northern Ireland, then as a matter of the most compelling logic, they are saying- as per Article 64 (1)- that Northern Ireland is part of the EU.
This demonstrates that Article 4 of the Protocol needs to be revised and more valuable.
The Government need to own up to their scheming and constitutional vandalism and answer a very simple question: is Northern Ireland part of the customs territory of the UK, or the entry point into the EU?
And if, as they presently suggest, it is the latter, then be honest enough to tell the citizens of the United Kingdom that Article 4 of the Protocol, which claims NI is part of the UK customs territory, is a deception.