Samuel Morrison: On the Act of Union alone this reported UK-EU deal will fail one of the DUP’s seven tests

The News Letter, for instance, ran a story yesterday under the headline, “suggestion that DUP’s ‘seven tests’ are met”.​

Commentators have remarked on the somewhat mercurial nature of the ‘seven tests’ but at least one is very clear and unambiguous.

The first of the seven tests is that “new arrangements must fulfil the guarantee of the Sixth Article of the Act of Union 1800”.

It is important to underscore the fact that this is not just the position of the DUP but rather that of all unionist parties.

The DUP, UUP and TUV are still committed to the pledge outlined in a letter which the leaders of three parties sent to then prime minister Boris Johnson in which they said any arrangement must be “consistent with the Act of Union 1800”.

On Ulster Day 2021 all unionist leaders signed up to the united unionist declaration which was unambiguous:

“We, the undersigned Unionist Political Leaders, affirm our opposition to the Northern Ireland Protocol, its mechanisms and structures and reaffirm our unalterable position that the Protocol must be rejected and replaced by arrangements which fully respect Northern Ireland’s position as a constituent and integral part of the United Kingdom.”

Lest there be any doubt as to what the unionist leaders were signing up to, an explanatory note was agreed and published alongside the declaration.

It made explicit reference to the importance of restoring Article Six of the Acts of Union:

“The economic union is grounded in Article 6 of the Acts of Union, which guarantees unfettered trade on the same footing between and within all parts of the United Kingdom. The Northern Ireland Protocol fundamentally alters the arrangements within the Belfast Agreement by making Northern Ireland subject to European Union laws and processes of a Single Market for goods, under a European Union customs code and VAT regime, with the rest of our nation decreed a “third country” when it comes to trade and the import of goods.”

The recent judicial review of the NI Protocol resulted in striking clarity about the status of Article Six.

The government’s own legal team have argued at various stages of the judicial review that Article Six has been ‘disapplied’ or ‘subjugated’ by the protocol.

The Supreme Court judgement makes stark reading on this point. Paragraph 68 states that “whether the effect of article VI was suspended or modified or subjugated for as long as the protocol was in existence is not of real significance”.

It goes on to employ the words “subjugation”, “modified” and “suspended” in relation to elements of Article Six.

There is no suggestion that the current talks will do anything to address this situation. In fact, we can categorically state that they will not because they are merely about the operation of the protocol and not changing the substance of it.

Doubtless the Secretary of State, Chris Heaton-Harris, and our Minister of State, Steve Baker, will be out selling any deal as a great victory but the fact remains that both men know they wouldn't tolerate such a situation were it to apply to their own constituents in Daventry or Wycombe.

However the announcement of a deal is dressed up, whatever spin is deployed, regardless of the blackmail exerted by Brussels, Dublin and Westminster the stark reality of last week’s judgement will remain.

If that isn’t enough, one only has to quote the language of His Majesty’s Government’s own legal team to show how far short any deal will fall of the basic demand of any unionist.

As David (later Lord) Trimble reminded us in 1998, “The Act of Union is the Union”.

It was on the understanding that the Union would be maintained that unionists were encouraged to buy into the structures of the Belfast Agreement.

We now know that that guarantee has been broken.

What sort of unionist would continue to participate in a charade which requires them to “subjugate“ the Union?