Jim Allister: No unionist could back a deal which means that Northern Ireland will never again be a full part of the UK

Anyone advocating a return to Stormont on the basis of the Stormont Brake should not just consider what a gimmick it is (as outlined below), but the wider ramifications of entering government under the Windsor Framework.

To do so is to accept and implement the essential elements of the Northern Ireland Protocol – all of which are untouched by the Windsor deal. The High Court in Rooney-v-Poots could not have been clearer. If there is an executive its ministers must by law implement the Protocol and its Irish Sea border. That is something no unionist worthy of the name can do, because it aids the detachment of NI from the UK through dynamic alignment with the Republic – under same customs code, in the same single market, under the same EU laws and foreign court.To operate the protocol is to accept that never again will Northern Ireland be a full part of the United Kingdom. The Stormont Brake is no saving grace from such a disastrous and Union-dismantling course

The following points are worth noting in assessing the Stormont Brake:

• The first thing to observe is that 32 EU laws (headings 2-6 in Annex 2 of Protocol) are expressly excluded from the ambit of ‘Brake’ by definition of “replacement EU act” in Para 1(6) of Sch 6B. This includes a swathe of important customs and trade laws.

• The so called Windsor Framework Democratic Scrutiny Committee will have an inbuilt majority of ‘rigorous implementers’, as d’hondt based. As the committee itself will operate on simple majority every monitoring, inquiry and objection can be blocked. It can cloak its obstruction by holding by majority that the new EU law does not significantly impact on everyday life or significantly depart from existing EU law (the very tests for exercising the brake). So, straightaway the legal basis for challenge by 30 MLAs is undermined and HMG handed an excuse not to act.

• The secretary of state has the sole discretion to accept the notification of objection from the 30 MLAs, confirming that 30 MLAs do not hold a veto (as falsely claimed by the prime minister) over new EU law.

• The basis for rejection of a petition or the failure to pass an applicability motion is low in that the measure in question must create a “new regulatory border between GB and NI”. Given the regulatory border created and confirmed by the Protocol/Windsor Framework already exists, the test of the new law itself creating a new regulatory border is hard to pass by the petitioning MLAs but easy to dismiss by the secretary of state.

• A further opaque but important restraint on the secretary of state’s acceptance of a petition of objection is his beholden obligation to the EU to act in what they term “good faith”. The draft joint declaration by the United Kingdom of Great Britain and Northern Ireland and the European Union in the Withdrawal Agreement Joint Committee on Article 13(3)(a) is key here. It envisages a situation where an arbitration panel could rule that an attempted application of the Stormont Brake did not meet the requirements of Article 5 of the Withdrawal Agreement.

• Art 5 of the Withdrawal Agreement sets out the concept of “good faith”.

“The Union and the United Kingdom shall, in full mutual respect and good faith….. shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement…”

The objectives of the agreement include the implementation of the protocol, whose “essential elements” are protected in Art 164. In plain terms among those “essential elements” is the imposition of EU law in NI. So, if the secretary of state is bound by the concept of ‘good faith’ not to do anything which “could jeopardise the attainment of the objectives of the Agreement”, then, doesn’t it follow that he is beholden to the EU not to disapply EU law!

Conclusion: the Stormont Brake is a fake in terms of its pretence of giving a meaningful ability to 30 MLAs to impede Northern Ireland’s subjection to additional EU law. And, of course, it leaves untouched the vast panoply of EU law already imposed by Annex 2 of the protocol.

But, even if it had merit it does not alter the reality that to operate Stormont under the protocol is to be a party to dismantling the very Union that makes us unionists.