Jamie Bryson: Government’s clever legal footwork over Northern Ireland Protocol will not hoodwink unionists
In the challenge being brought against the entirely legitimate instruction by DUP Minister Edwin Poots to halt Irish Sea border checks, which itself was a response to legal proceedings issued by Unionist Voice Policy Studies, the UK Government intervened.
In this intervention, the UK Government submitted that in matters of trade “the UK is no longer a unitary state”.
It is hard to put into words the significance of that constitutionally outrageous submission. Whilst talking tough and playing up their unionist credentials publicly (and privately), the UK Government are simultaneously telling the High Court that in terms of the trading element of our precious Union, Northern Ireland is no longer truly part of it.
In an illuminating exchange it was pointed out by Mr Justice Colton, and accepted by counsel for the UK Government, that Article 4 of the Protocol (which purports to ensure NI remains within the customs territory of the UK) says one thing, but does another.
In practice, as previously pointed out by distinguished jurist Lord Justice McCloskey, Northern Ireland is more in the EU customs territory than that of the UK.
And that, in practice, is precisely what is in dispute in this case. The issue, it seems, is that the relevant Regulation (2017/625) which requires checks, was never amended to exclude Northern Ireland from the customs territory of the UK.
The UK Government now want the Court to do this for them by simply interpreting the territory as Great Britain and excluding Northern Ireland, without having to bear the political cost of openly removing Northern Ireland from the defined territory of the UK for the purposes of the relevant Regulation.
They want the words to say one thing, but do something else, in the hope no one will notice. Unfortunately for them, it was noticed.
The substance of the point in dispute on its face is highly complex, but in reality it is straightforward. In the Regulations which continued to apply to Northern Ireland post the UK (or, more accurately, Great Britain) leaving the EU, it states that checks are to be carried out at the point of entry into the EU territory.
In the same regulations the UK territory is defined as Great Britain and Northern Ireland; it is obvious to point out therefore that goods moving between GB and NI are not entering EU territory. Therefore, by the letter of the law, there is in fact no legal requirement for checks.
Interestingly, no one now even disputes that is the plain meaning of the relevant legal text, but rather the Court is being urged to ‘interpret’ the problematic provision in a manner that would make it compatible with the ‘intent’ of the Protocol which, it is said, envisages Northern Ireland being effectively part of the EU customs territory.
Put simply, the Court is being asked to overlook the letter of the law, and instead effectively re-write the relevant provision in order to make it fit the Protocol’s objective. It seems trite to point out that exercise isn’t applying the law, but suspiciously close to making law.
If Courts begin substituting an interpretation to reach some politically subjective ‘greater good’, for the clear words of the legislation, Courts enter the political arena, and when they do it is inevitable partisanship, or allegations thereof will arise. If that happens the legitimacy of our entire democratic system, inherent within which is the principle of judicial independence, is undermined.
If, as it seems, the failure to amend the Regulation is an error, then it isn’t for the Court to fix that error in order to prop up the Protocol.
This entire episode displays the duplicity and deceit at the heart of the Protocol. It symbolically says one thing (e.g. NI is to remain in the UK customs territory), but in practice does something entirely different (e.g. Northern Ireland is in fact part of the EU customs territory).
The unionist community are no fools. The majority of us saw the deception the first moment the Protocol was breathed to life, and if the Government thinks they are going to hoodwink us with some clever footwork then they are sadly mistaken.
If the Government want checks entering EU territory, and they want that to mean Northern Ireland, then they must own that and bear the political cost.
The political cost of the Protocol should be well understood.
Let us put it simply, lest the Government be entertaining any false ideas: there will be no power sharing in Northern Ireland until - as a matter of law and in practice - Northern Ireland is restored to a full part of the United Kingdom in line with the Acts of Union.
Jamie Bryson is chairman of Unionist Voice Policy Studies and author of Constitutional Law: Acts of Union and NI Protocol