Jamie Bryson: If the DUP now opposes EU law primacy in Northern Ireland, then presumably it will use the Stormont brake to block its application here

​Writing in the News Letter just over two months ago in an article under the name of David Brooks, the DUP argued they had “never sought to remove all EU law from the province”.

EU law on NI can’t be altered by the assembly or even Parliament, unless MPs unilaterally scrap the protocol. ​There are many reasons to doubt the new DUP pledge; it certainly isn’t derived from a place of ideological belief

Somewhat absurdly, the article justified this by referring to what they said was “retained EU law across the UK” (‘Stormont brake can work to protect NI from harmful EU law,’ February 21).

Perhaps the author of the article simply didn’t understand, or alternatively was being deliberately deceptive, in failing to point to the reality that (despite the name) retained EU law is not EU law, but rather former EU law which was transposed in UK law on Exit Day.

Put simply, this domestic law can be changed by Parliament or in some circumstances devolved legislatures given its status as UK law.

In Northern Ireland, EU law applies via Annex 2 (in over 300 areas of public policy) and dynamically via Article 2 in respect of the broad (and ever broadening) concept of ‘rights’ which makes EU law supreme, even operating to nullify acts of the sovereign Parliament (see for example the Legacy Act and Illegal Migration Act).

This EU law imposed on NI cannot be altered by the Assembly or even Parliament, other than if MPs took the step of unilaterally dismantling the protocol.

In their subtle but undeniable disavowal of the Donaldson Deal on Surrendering the Union and the bold (and wholly untrue) claims deployed by the DUP to try and sell it, the party leadership has now said EU law must be removed.

This was expressed alongside their forced acceptance that contrary to their previous claims, NI’s place in the Union has not been restored nor the Irish Sea border removed (which people like me, Kate Hoey and Jim Allister, and more importantly NI’s former Attorney General John Larkin KC made clear from the outset).

The political opponents of the DUP’s deal were mocked, derided and dismissed as ‘dead end unionists’. The independent legal opinion of John Larkin – which there wasn’t a single other legal opinion to contest – was dismissed with a flick of Donaldson’s wrist, as Gavin Robinson stood beside him endorsing his every word.

There are multiple reasons to doubt the sincerity of the new pledge on EU law; it most certainly isn’t derived from a place of ideological belief.

In equal terms, the DUP just over a month ago laid an applicability motion to accept EU law in the assembly. If there was any fundamental ideological belief and commitment to opposing such foreign law, then it is fair to question why it has only now manifested itself when an election is called and the DUP can no longer sustain the tall tales that they were more than happy to perpetuate when selling and championing their deal.

Jeffrey Donaldson had at best a limited, and at worst a wholly confused understanding of the issues, particularly around EU law.

At one point he described a requirement to remove it as the “fundamental issue”, and then latterly became a champion for the central concept of the Protocol Framework, namely that Northern Ireland would have a constitutionally hybrid economic status, whilst symbolically being within the UK but for all practical and legal purposes being part of the EU single market for goods and treated as EU territory.

This was described as the ‘best of both worlds’ and/or ‘dual market access’.

It is this concept which became the central policy position of the DUP. A condition precedent of the operation of that concept is NI’s adherence to EU law. Put simply: you can’t have unfettered access to the EU single market without following EU law.

And that is where the DUP’s u-turn becomes confusing. If they now require the removal of the toxic impact of EU law, then that requires disavowing the dual market access and ‘best of both worlds’.

This is the first test of the DUP’s sincerity. It is not a matter of technical dense detail, it is very simple.

You can have privileged access to the EU single market but the price is the continued application of EU law; or you can require the end of EU law, and thus lose privileged access to the EU single market.

The forcing of that choice will illuminate whether the DUP have genuinely had a change of heart, or whether Mr Robinson’s speech was just words devoid of any substance.

But given what is now presented as the clear intent to fight to remove EU law, one presumes that it follows that the DUP will oppose every measure of amended EU law via the Stormont Brake and will never again lay an applicability motion to accept new EU law.

This stance ought to be taken on the basis that as a matter of principle the very imposition of EU law, regardless of content, causes constitutional harm.

It is the absence of any clear commitments which raise doubts of the sincerity and intent behind Mr Robinson’s speech.

If he means what he says, then there must be cast iron commitments as to how the DUP are going to deliver on them.

Given how malleable and moveable the very clear seven tests became, the unionist and loyalist community can be forgiven for operating on the basis that the DUP need to be clearly and expressly tied down, otherwise that which everyone understands are fundamental red lines, all of a sudden become something much less.