Former attorney general for Northern Ireland John Larkin KC concludes Windsor Framework is not compatible with Acts of Union 1800

John Larkin KC had been asked for legal advice by Jamie Bryson’s Centre for the Union on the fresh deal with specific reference to its impact on article 6 of the 1800 act which guarantees “unfettered trade on the same footing between and within all parts of the UK” (scroll down to read how Jamie Bryson rejects the deal).

Mr Larkin was asked if the framework was compatible with article 6 as per the guarantee of free trade, if it remedied the “subjugation” of the article, and if its proposals “strengthened the constitutional guarantee respecting the constitutional status of Northern Ireland”.

At the conclusion of a detailed report, in each case he answered ‘no’.

The KC’s answers have prompted loyalist activist Mr Bryson to come out strongly against the deal, explaining why in tomorrow’s News Letter.

He said: “It was obvious to me relatively quickly what the right answer was as to whether unionism should endorse the deal. However, such a detailed and complex series of interlocking texts warranted rigorous examination, and as such I have reserved judgment until now.”

Lord Dodds also questioned whether there is unfettered trade across the Irish Sea, saying: “What the new deal does is to keep the reality of the Irish sea border completely in place but to mitigate its effect – not remove it – through a reduction in bureaucracy, but only for companies who can declare for certain that none of their goods will go over the border.”

Lord Dodds added: “So Border Control posts are necessary not just for goods destined for the Irish Republic but all goods where there is any uncertainty about their end destination such that one cannot be absolutely sure that they won’t end up in the Republic.

"Not exactly free trade within the United Kingdom.”

Lord Dodds went on to say that green lane goods are still subject to customs, “clearly demonstrating the ongoing reality of the border down the Irish Sea”.

He added: “This paperwork may be simplified but it is still customs paperwork. It still entails costs.

“There isn’t any customs paperwork for moving goods between Wales and Scotland, or England and Wales because there is not a customs border between Wales, England and Scotland.

“There wasn’t any customs paperwork for moving goods between Wales, England, Scotland and Northern Ireland before 1 January 2021.”

He said that moreover, if you qualify for the trusted trader scheme, and are green laned, you are still potentially subject to checks, albeit the checks the checks will be less frequent.

Lord Dodds commented: “In short, it is very clear that the purpose of these border control posts is not just to provide red lane checks for goods going to the Republic of Ireland, but to cement in the reality of an international customs border between Great Britain and Northern Ireland, so that trading with Northern Ireland becomes more like trading with the foreign country.”

In tomorrow’s paper Mr Bryson writes: “The Windsor Framework is incompatible with the Acts of Union. There is not even a credible argument that it is not. That answer is simple.

"EU law continues to apply and trade GB-NI is on a different footing than, for example, trade from England to Scotland.

He said: “The answer to the Windsor Framework is not in fact at all a difficult one for any self-respecting unionist. It does not restore the Acts of Union, rather it entrenches the subjugation. Therefore anyone who endorses the deal is complicit in the subjugation of that which, in a legal sense, is the Union.”

See also:

Letter from Jamie Bryson: Deal must be rejected but its core parts could be restructured

Windsor Framework and Northern Ireland Protocol: Ian Paisley endorses John Larkin legal report which demands further concessions

Owen Polley: Unionists face dilemma - protocol deal is progress against the Irish Sea border but is not a comprehensive solution to it

Editorial: John Larkin KC's view of the protocol deal shows why it is right to take time to assess the agreement