Loyalist Jamie Bryson says senior Orangeman Mervyn Gibson is 'completely wrong' about sea border

Writing in the Belfast Telegraph last week, Mr Gibson said the deal is “a win for unionist determination and unity, and needs to be accepted as such”. He argued the deal “will not only put a united Ireland out of touching distance, it will knock it out of sight” – arguing it included “key checks and balances included that will see outstanding issues addressed and the rot caused by the protocol halted”.

Mr Bryson, writing on his Unionist Voice website, rejects Mr Gibson’s assessment. He says that his article “is not, in any shape or form, a personal attack on Rev Gibson or to in any way question his unionism”.

However the anti-protocol activist says that Mr Gibson – who was speaking in a personal capacity and not on behalf of the Orange Order – has got it fundamentally wrong in his assessment of the changes to the Windsor Framework’s green lane – and the purpose of the red lane for goods coming into Northern Ireland from Great Britain.

Mr Bryson says: “Rev Gibson says the ‘green lane’ has gone and ‘unfettered access’ (presumably in this context he means internal UK trade GB-NI) is restored. These conclusions are demonstrably false.

“The green lane was (and is) essentially a special trusted trader scheme to permit traders to apply for authorisation to be able to trade without being subject to a full EU customs border (the red lane). Its structure is set out in the Windsor Framework”.

He continues: “Let us be clear: to trade GB-NI for goods remaining in NI, you must apply (providing information for ‘customs purposes’) and seek ‘authorisation’ to exercise the right to trade internally in your own country.

“They have renamed this scheme the ‘UK Internal Market scheme’. This renaming is all very patriotic, but the ‘green lane’ structure remains firmly in place.

“Therefore, I defeat Rev Gibson’s contention on this point with a very simple (rhetorical) question: if the ‘green lane’ is gone, then what are traders applying to access, to trade GB-NI?

“This simple point equally defeats the unfettered access contention. If there was unfettered GB-NI trade, such as there is between two locations in GB, then how come a trader must apply to seek authorisation to engage in GB-NI trade outside of the red lane?

“Rev Gibson then says ‘the red lane never concerned me. It’s for goods travelling to the EU’. This is simply wrong. The red lane catches all goods falling into the ‘at risk’ category, which is set by the UK and EU via the joint committee. Therefore, many materials and goods which are not for the EU at all, are – due to the requirements imposed by the EU in the ‘at risk’ criteria – nevertheless in the red lane.

“The ‘at risk’ criteria is within the remit of the joint committee, therefore extending executive powers, or at least a veto, to the EU over internal UK trading arrangements. The EU are co-equal administrator of the Irish Sea border.

“A core issue which Rev Gibson had identified many times before the deal was the continued application of EU law. I am not sure from where Mervyn derives his belief that EU law no longer applies... it applies unabated.

“The full swathe of EU law listed in Annex 2 of the Protocol, alongside Annex 1 and all that which applies due to the provisions of Article 2, continues in NI alongside the jurisdiction of the ECJ in these areas.

“The Stormont brake does not, as Sir Jeffrey Donaldson has claimed, ‘break dynamic alignment’. The EU law still by default continues to flow. Stormont can merely ask the UK Government to pull the brake if exacting conditions are met. If the Government accede to this request, then they must discuss the matter with the EU and if the EU do not agree, the matter is finally determined by international arbitration- not even the sovereign UK Parliament, let alone Stormont”.

The DUP argue that the pipeline of EU law flowing into Northern Ireland can be turned off by the Stormont Brake mechanism – which can only be applied by a functioning Assembly. 30 MLAs from at least two parties can notify the UK Government of their objection to the amendment or replacement of certain EU laws which apply in Northern Ireland under the original Northern Ireland Protocol.

The MLAs must satisfy certain conditions, including that the amending or replacement EU law “significantly differs” in its content or scope from the original and would have a “significant impact specific to everyday life” in Northern Ireland which is “liable to persist”. If these conditions are met, the UK Government would be legally obliged to trigger the Stormont Brake.

However, concerns have been raised by the UUP MLA Tom Elliott that the brake could leave Northern Ireland in a regulatory ‘no mans land’ between UK and EU rules.

The DUP are likely to test the mechanism in the early days of the revived Assembly.