Jim Allister: Article 6 of Acts of Union guarantees UK trade and it must be restored

Without Art 6 fully applicable to Northern Ireland we cease to be a full part of the UK.

The UK was created and is sustained as a political union (Art 3 of Acts of Union) and as an economic union (Art 6). Together that is how the Union was formed and exists. As Lord Trimble accurately said ‘the Union is the Acts of Union’.

Yet, we know from our Supreme Court that as it affects trade Art 6, vis-a-vis Northern Ireland, is in suspension and that because of the protocol, whose ‘essential elements’ are unaltered by the Windsor Framework. (Art 164 Withdrawal Agreement)

The practical manifestation of the suspension of Art 6 is found in both the application of EU law to NI and most especially in the partitioning Irish Sea border, where goods hitherto guaranteed unfettered passage under Art 6 are now subject to customs checks, tariffs and checks.

This is because in the terms of the EU Customs Code, which the protocol applies to NI, Great Britain is deemed to be a third or foreign country, with NI treated as the entry point to the EU.

Understanding Art 6 and its overriding constitutional significance is fundamental to understanding unionist rejection of the protocol. It is why the restoration of Art 6 has been the touchstone demand of unionism.

To seek its restoration it is first necessary to understand the legislative path which suspended Art 6 and thereby identify what needs to be fixed if any promised legislation is to be of value.

Section 7A of the EU (Withdrawal) Act 2018 is the cause and means of the suspension of Art 6 of the Acts of Union.

This is accepted by His Majesty’s Government because, as recorded at para 8 of the Supreme Court ruling, the government’s KC told the court, “the effect of section 7A of the European Union (Withdrawal) Act 2018 (‘the 2018 Act’) suspended the effect of article VI for as long as the protocol was in existence”.

The Supreme Court itself confirmed at para 68 that Art 6 as it affects trade with NI is in suspension and that because of Section 7A of the 2018 Act.

Section 7A is the means by which EU law, both retrospectively and prospectively, flows into effect in Northern Ireland. It has rightly been referred to as a conduit for this purpose.

7A(2) is unmistakably clear when it comes to what is provided in the Withdrawal Agreement, which includes the Protocol:

“The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be —

(a) recognised and available in domestic law, and

(b) enforced, allowed and followed accordingly.”

And going forward 7A(3) is of vital significance. It is itself a curb on any new legislation, unless by primary legislation Parliament sets aside 7A. It says, “Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2).”

So, 7A(2) has supremacy, which means the protocol has supremacy. Thus, the defining test for any new legislation the government might produce, following its negotiation with the DUP, is does it repeal or otherwise remove the effect of Section 7A, because if it does not, then, nothing has changed.

How far, if at all, Section 7A is changed will indicate how far, if at all, the new legislative provisions will made a button of difference to NI’s place as detached from GB by a customs and regulatory border and as a colonial rule-taker from Brussels.

The effect on Section 7A is the litmus test for any new legislation to determine whether it fully restores Art 6 of the Acts of Union or is a mere deceptive figleaf.

This is how I and TUV will judge any such proposed legislation.

• Article by TUV leader Jim Allister KC MLA