There can be no compromise on fundamental constitutional tests | Jamie Bryson

Firstly, on behalf of the Centre for the Union Northern Ireland, and I am sure our entire UK-wide organisation, I want to express continued support for the DUP, TUV and PUP in the principled stand they are taking in opposition to the Protocol which has “subjugated” Northern Ireland’s place within the United Kingdom, causing the unionist community to be denied their fundamental constitutional right of equal citizenship.

They are supported in this by the Loyal Orders and grassroots unionism and loyalism as well as countless other groups from all communities. That support remains undiminished. There has seldom been such unity of purpose. The Protocol has succeeded in uniting principled unionism in a ‘spirit of Dunkirk’.

Intensive pressure has particularly been placed on the DUP leader Sir Jeffrey Donaldson MP. He has steadfastly remained faithful to his clear commitments to the unionist community and the tests he has set out. The message from those who have given the DUP a huge mandate is stand firm. There is no compromise to be made on the very constitutional foundation of the Union itself.

Principled unionism stands strong together on our metaphorical picket-line with a simple message: power-sharing or Protocol, but never both.

The DUP’s seven key tests are a vital yardstick by which to assess any proposed ‘deal’, however,picket line it seems obvious to point out that any arrangement which operates within the framework of the Protocol will fall at the first hurdle. It is the very structural architecture of the Protocol which is constitutionally corrosive. It must be removed in its entirety.

Of vital importance is the restoration of Article VI of the Acts of Union. That is the first of the DUP’s seven key tests.

As the Court of Appeal judgement (from which the Supreme Court did not deviate) in Allister et al made clear in paragraphs [175] and [325]-[327], the continued application of EU law to NI, and by extension the jurisdiction of the ECJ, puts NI on an unequal footing and thus offends the constitutional guarantee in Article 6 of the Acts of Union.

Therefore, any ‘deal’ which fails to remove - in its entirety- the continued imposition of EU law and the jurisdiction of the ECJ from NI, will be unable to remedy the breach of Article 6 of the Acts if Union, and accordingly will not only fail the very first of the DUP’s seven key tests, but will further be unacceptable to any unionist who wishes to preserve the Union.

This test is not symbolic, and nor will some ‘nod’ to the Act of Union in any legislative provision which is ‘subject to’ section 7A of the EUWA 2018 be sufficient.

The Acts of Union must be restored with an express legislative provision making sure that fundamental constitutional law prevails notwithstanding section 7A. That is of fundamental importance.

In addition, the proposed solution of red lanes-green lanes (which is in truth more of a red and amber lane) does not resolve the issue. The Official Control (NI) Regulations 2023- which it is said is necessary to implement the ‘two lanes’ concept- treats NI as the entry point into the EU. That is intolerable for anyone who values sovereignty.

Moreover, a ‘green lane’ in which those trading within their own country must opt-in as a ‘trusted trader’ or which is subject to any additional requirements than would apply to those trading internally within GB, would constitute unequal footing and therefore further fail to restore the Acts of Union.

In summary, the fundamental constitutional ‘red line’ upon which there can be no negotiation, compromise or ‘fudge’ is the restoration of the Acts of Union (which is the first of the DUP’s seven key tests). For the avoidance of any doubt, here is the unalterable components of that that key test. If they are not met, then there is no intellectually credible case to be made for suggesting the Acts of Union are restored:

1. There can be no EU law applicable to NI. This is not new, the DUP leader has consistently and repeatedly in recent months made this clear, including in a detailed party conference speech. That means the laws which apply by default to NI must be UK law. If business wish to ‘opt-in’ and certify as exporters to the EU single market and therefore voluntarily follow EU law for this purpose, that is a different matter. But let us be clear: in the United Kingdom, the only law which can apply is UK law.

2. The jurisdiction of the ECJ in Northern Ireland is incompatible with basic principles of sovereignty. It is further incompatible with Article VI of the Acts of Union because the jurisdiction of a foreign court in NI offends the guarantee of equal footing.

3. A ‘green lane’ is not a green lane if it either: (a) requires any additional requirements at all beyond that which would apply for trading between two locations in GB.; or (b) you are required to ‘opt in’, for example to a trusted trader scheme. Put simply; trading from GB-NI must be on exactly the same terms as trading within GB. This is a key component of securing compliance with the Acts of Union

4. The Acts of Union (nor the NI Act 1998) cannot be ‘subject to’ section 7A of the EUWA 2018, because if that is so it makes both the fundamental constitutional basis of the Union itself, and the constitutional arrangements for devolution subservient to other provisions. That does not offer sufficient protections to the constitutional status of Northern Ireland within the United Kingdom.

There is another key test listed in the DUP’s ‘seven key tests’. It is number seven and it requires the constitutional guarantee (the principle of consent) to operate to guard against any diminution of Northern Ireland’s place in the Union. Put simply, you cant change everything but the last thing in relation to NI’s place in the Union, the last thing being merely the final formal handover of sovereignty.

That requires an amendment to section 1 (1) of the NI Act 1998. How is it proposed that test will be met?

It should be noted that many have missed a key impact of the Supreme Court judgment. The NI Act 1998 (giving effect to the Belfast Agreement) is equally ‘subject to’ section 7A of the 2018 Act, which is an all-powerful pipe through which dynamic EU law- or alterations to the treaty via the joint-committee- can flow into domestic law and automatically have supremacy. The Court has held that any guarantee of protecting the Belfast Agreement or 1998 Act is to be understood as protecting those provisions as amended by the Protocol. In short form, if the joint-committee took a decision which created an inconsistency with the 1998 Act, then section 7A would allow the inconsistency to prevail and the 1998 Act would simply be read as being “subjugated” in so far as there is any inconsistency.

To give one obvious example, OCR 2017/625 applies via Annex 2 of the Protocol and thus comes into domestic law via section 7A of the 2018 Act. It defines NI as part of the territory of the EU rather than NI. Given the complete supremacy of section 7A, this overrides all other legal provisions, including the constitutional safeguards in the 1998 Act.

There will be many efforts to muddle the conversation in the coming days and weeks by those who wish to sow confusion amongst unionism and create pressure to compromise. The key tests are simple, they can’t be fudged or finessed. There is no way around them.

The Centre for Union, and many others across unionism both in NI and in GB, will be watching closely to ensure complete fidelity to the tests and to ensure citizens of the United Kingdom receive an honest assessment of the true impact of any deal which transpires.

If the price of Stormont is accepting a ‘deal’ which fails to- in substance as well as symbolically- restore the Acts of Union and thus Northern Ireland’s constitutional status, then it is a price no unionist could ever pay, and nor should ever consider paying.