Henry Patterson: ​Legalistic attempts to ‘restore’ Article 6 of the Act of Union would be a disaster

This is a good principle for unionism to campaign on.

However it differs fundamentally from the one put forward by the Centre for the Union and Jamie Bryson and repeated by Jim Alistair – that this test demands “restoring” the original Acts of Union and Article 6 to its “pre-protocol status”.

This fundamental distinction seems to be missed by people who are quoting the Acts of Union but seemingly have not read the original closely, or only have a partial understanding of the constitutional history of Northern Ireland thereafter.

Professor John Whyte in his great book Interpreting Northern Ireland raised the question of why research on the Northern Ireland problem has not been more effective? By this he meant that there was little evidence that policy makers, political leaders or media opinion formers had read much or indeed any of it. I must admit a similar frustration having written a history of relations between Northern Ireland, the South and Great Britain, Ireland since 1939, which deals with political and economic relations across the two islands and north/south.

From that perspective the restoration of Article 6 of the Acts of Union to its pre-Protocol status would be a very bad business indeed. The original Article 6 (the so-called ‘same footing’ clause) actually included a list of significant duties on goods moving between Great Britain and Ireland. In addition to duties on goods like whisky, cider and chocolate, it also entailed that countervailing duties could be imposed by the UK Parliament.

Is the Centre for the Union campaigning for full literal restoration including tariffs on goods or the broad principle contained therein? That would mean tariffs on Bushmills whisky for sale in the rest of the UK market and much else besides.

The lived experience of “equal treatment” under Article 6 of the Union was nothing of the sort. This was particularly the case after the Government of Ireland Act of 1920 which, in truth, was the real constitutional foundation of Northern Ireland. From that point, there has always been differentiation between Northern Ireland and the rest of the UK. Section 21 of the 1920 Act required extensive checks by customs officers on goods travelling between Great Britain and Northern Ireland.

Northern Ireland’s geographic distinctiveness has also been long understood to have legislative implications. In exercise of the powers in the Government of Ireland Act 1920, the Destructive Imported Animals Act (Northern Ireland) 1933 gave the Ministry of Agriculture power to prohibit the import of “non-indigenous animals”. The Diseases of Animals Act (Northern Ireland) 1958 allowed for special provision to be made for animals coming from Great Britain. The Food and Drugs Act (Northern Ireland) 1958 made specific provision for Northern Ireland in relation to various matters relating to food and drugs, including labelling requirements and powers of inspection and examination. The Seeds Act (Northern Ireland) 1965 provided powers to make specific provision for Northern Ireland in relation to the regulation of seeds and seed potatoes, including prohibitions on their import in certain circumstances.

Can the Centre for the Union explain if this is what they mean by restoring the “pre-protocol status” of Article 6 because all of this happened under unionist majority rule?

In October 1942 the Residence in Northern Ireland Restriction Order stipulated that all British citizens not normally resident in Northern Ireland on January 1 1940 were required to obtain a work permit from the Ministry of Home Affairs if they wished to stay in Northern Ireland for longer than six weeks. This control on the free flow of labour within the United Kingdom continued well into the 1950s.

If the Centre for Union believe that privileged market access for Northern Ireland with Ireland is so bad, are they aware that they the first unionists to think so? From 1920, the United Kingdom entered into trading arrangements with Ireland that provided more favourable market access for Northern Ireland. In 1964 Lord Brookeborough was prepared to allow furniture manufacturers in Northern Ireland to negotiate with the Irish Ministry of Industry and Commerce to achieve a reduction in the tariffs they had to pay exporting their products into the Republic. British furniture manufacturers would continue to pay the higher tariffs.

The Anglo-Irish Free Trade Area Agreement of 1965 provided that the Irish government could grant additional tariff concessions to goods of Northern Ireland origin. As a result, in 1966 import duties on Northern Ireland goods moving into Ireland, other than agricultural goods, certain jute products and certain textiles, were reduced by 20% as against the 10% reduction applied to goods originating in Great Britain. And that meant countervailing tariffs had to be collected on certain goods too.

William Craig, then a minister in the Northern Ireland Government, was not worried. As he said in 1965, “the question could be considered as purely commercial without constitutional implications. Special treatment for Northern Ireland could be justified by the proximity of the Republic across the land frontier”. Was Mr Craig wrong?

A much more genuine version of equal footing was eventually achieved, of course. This happened from 1973-2016 when both the Republic of Ireland and the UK joined the European Community and European Union and these distinctions melted away. If the answer to “same footing” was rejoining the EU, and not restoration of Article 6, is this something the Centre for the Union would support?

Unionists are all too ready to adopt the language of nationalists about the existence of a very limited “all-island economy”. As Dr Graham Gudgin has pointed out in these pages, this is a wildly overstated claim. In any circumstances Northern Ireland remains profoundly locked into the UK economy.

Legalistic attempts to “restore” Article 6 would be a disaster – both economically and in allowing the strategic direction of unionism to be set by people whose understanding of the constitutional history of the Union does not stand up to scrutiny.

Apart from arguments from legal and economic history there is one profoundly important moral and political issue that demands a unionist presence at the heart of government in Northern Ireland: that of legacy.

The Irish government’s inter-state case should shock anyone with its hypocrisy. As Stephen Collins, the former political editor of the Irish Times, noted of the Smithwick Tribunal finding that someone in the Dundalk Garda station colluded with the IRA in the murder of two RUC officers, ‘The IRA campaign could never have gone on for so long if a significant number of people on the southern side of the Border had not been prepared to collude or at the very least turn a blind eye to its activities.

Victims of that campaign need a voice at the heart of government in Northern Ireland to argue strongly for an historically accurate account of Troubles violence not one that is too prevalent in the media and civil society that has transformed perpetrators into victims. The travesty of Dublin berating the British on legacy when Father Patrick Ryan can sit in a south Dublin café today and boast of his role in a huge range of IRA attacks without fear of any attention from the Garda Siochana needs to be called out by DUP ministers at the heart of a devolved government.

• Henry Patterson is emeritus professor of Irish politics at the University of Ulster and author of Ireland’s Violent frontier: The Border and Anglo-Irish Relations During the Troubles