Analysis: Can the DUP's seven tests deal with the 'problem' of EU Law?

This week Sammy Wilson said the continued application of EU law in NI is the source of all problems with the Windsor Framework – after a top trade lawyer called it the "underlying mistake" in the deal.

The DUP have set seven tests they say must be met before they return to government. Yesterday, the party reiterated those tests. Scrapping EU law is not one of them - but could the DUP’s seven tests deliver that?

Just a week before the 2022 Assembly election, Sir Jeffrey Donaldson made clear his thoughts on the real problem with the NI Protocol. Amid unionist anger over border posts and customs checks – the DUP leader pointed to something more fundamental. He said checks “are the symptom of the underlying problem, namely, that Northern Ireland is subject to a different set of laws imposed upon us by a foreign entity”. EU laws remain – and the DUP remains out of Stormont – for now.

When asked by the News Letter this week if the continued application of EU law is something that needs to be removed before the DUP returns to Stormont, the party didn’t directly answer the question. However, they did point to their seven tests.

For months the DUP have remained broadly united around those tests. Top of their wish list is that any new arrangements “fulfil Article Six of the Act of Union”. The document has been in effect since 1801 and guarantees the same rights for people here – including in trade – as the rest of the UK. Or at least it did, until the courts ruled that the protocol overrides it.

But how can it be ‘fulfilled’ as the DUP promise? And is that possible if Northern Ireland remains under Brussels regulation?

The DUP’s Emma Little-Pengelly told the News Letter this week that the party’s objectives include “restoring and future-proofing in law our Article Six rights under the Acts of Union”. That’s not quite the same thing as restoring the Act of Union itself – which many believe would require EU law to go.

TUV leader Jim Allister believes the detail of how the DUP applies its tests will decide whether EU law – and the sea border – remain. "We need to ask, what put Article Six into suspension? The answer lies in our subjection to the EU Customs Code and to EU law, both in respect of the Customs Code and the EU single market. It is these which removes the ‘equal footing’ guarantee of Article Six.”

Allister says it’s not clear to him what the DUP pledge to ‘fulfil’ Article Six means. “If it means less than full restoration, then it involves steps short of what is needed which… includes repeal of Section 7A”. Put simply, section 7A is what allows EU law to apply in Northern Ireland – and Mr Allister wants it gone.

Another DUP test is that new arrangements must “not constitute a border in the Irish Sea”. It is difficult to see how there won’t be a border in the Irish Sea while EU law applies here. Trade borders emerge where regulations differ, and Northern Ireland is aligned to EU rules while Great Britain is not. The Windsor Framework deals with some of the friction on the ground for now, but that situation could change if Great Britain diverges from EU standards. Trade expert James Webber told a Lords committee this week that "The practical effects of that error [that NI remains under EU laws] will worsen I think, over time".

The UK government and the EU have made clear that the Windsor Framework is not up for renegotiation. That means EU law and therefore some form of border in the Irish Sea are here for the foreseeable.

The choice facing the DUP is which is the least-worst option: return to Stormont on the basis of a deal which might not satisfy those whose priority is the constitution – or keep local government down indefinitely and hope for a better deal which may never come.

The party says it continues to talk to the government to secure its objectives. “Our party has a strong mandate to take the necessary action so that we can get the fundamentals right for the long-term” says Emma Little-Pengelly. She says the DUP remains “determined to see outcomes and actions from the Government that restore NI’s place in the UK’s internal market and respect Northern Ireland’s place within the Union”.