With pro-EU forces and media feverishly now pushing for a Northern Ireland only backstop, it is time to take cognisance of a fundamental constitutional imperative.
A Northern Ireland only backstop would require Northern Ireland to belong to the Customs Union of the European Union and, therefore cease to be part of the Customs Union of the United Kingdom.
Such, I believe, would be unconstitutional, because Article 6 of the Act of Union 1800 is still law.
Its meaning is clear in declaring (in today’s parlance) that all parts of the United Kingdom shall share in the same Customs Union and, moreover, shall be on the same footing in any treaties made with foreign powers.
Subjects of Great Britain and Ireland to be on same footing from 1 Jan. 1801.
“That it be the sixth article of union, that his Majesty’s subjects of Great Britain and Ireland shall, from and after the first day of January, one thousand eight hundred and one, be entitled to the same privileges, and be on the same footing as to encouragements and bounties on the like articles, being the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in all ports and places in the united kingdom and its dependencies; and that in all treaties made by his Majesty, his heirs, and successors, with any foreign power, his Majesty’s subjects of Ireland shall have same the privileges, and be on the same footing as his Majesty’s subjects of Great Britain.”
Abandoning Northern Ireland to the European Union’s Customs Union would subject us to a different tariff regime which would offend Article 6.
Future United Kingdom trade deals would not apply to Northern Ireland, thus, again denying us the same privileges.
Accordingly, a Northern Ireland only backstop is antithetical to Article 6 of the Act of Union and would amount to the breakup of the United Kingdom.
Moreover, a Withdrawal Agreement with the European Union would be a treaty.
Article 6 affords us the right to be treated on the same footing as Great Britain. A Northern Ireland only backstop would infringe that.
So, any attempt to allow Northern Ireland to become an annex of the European Union, set apart from the Customs Union and single market of the United Kingdom, is likely to face fundamental legal challenge.
l Jim Allister QC is MLA for North Antrim and leader of Traditional Unionist Voice