Owen Polley: The DUP's interpretation of the deal over the Irish Sea border is being shown up repeatedly in the most embarrassing ways

​It was a week of contrasts last week for the DUP.

DUP leader Sir Jeffrey Donaldson and NI Secretary Chris Heaton-Harris with copies of the ‘Safeguarding the Union’ document. Writing in today's News Letter, DUP deputy leader Gavin Robinson says his party's agreement with the government 'goes further than ever before to undo the damage of the NI Protocol'. He adds: 'The arrangements we have secured not only restore but safeguard Northern Ireland’s place in the United Kingdom and its internal market'

On a positive note, the Covid Inquiry published WhatsApp messages from the party that were expected to create uproar, but instead contained nothing outrageous, despite some valiant attempts to sensationalise their contents.

The communications certainly mocked other executive ministers, though usually with ample justification. For example, they lampooned Sinn Fein’s penchant for eagerly grasping British money while also complaining about the evils of ‘perfidious Albion’.

Several messages implied that Naomi Long was inclined to be long-winded, sanctimonious and difficult to listen to in meetings. Surely not?

And some of the WhatsApps were, dare I say it, rather funny.

For instance, Lord Weir, then the education secretary, asked where the executive would be without the ‘philosophical musings’ of Sinn Fein’s verbose chairman and former junior minister, Declan Kearney. An unnamed correspondent replied, “At a shorter meeting.”

That was typical of the content, which was often cutting and sarcastic, but, in such trying circumstances, relatively mild.

Unfortunately, that was where the good news ended for the DUP.

At the High Court in Belfast, a judge ruled that the government’s plan to deport illegal migrants to Rwanda could not operate legally in Northern Ireland. That was effectively a stake through the heart of the party’s claims for its Safeguarding the Union deal with Rishi Sunak.

Not that you could have told that from the reaction of the DUP’s new leader, Gavin Robinson MP. He concentrated on the practical implications of the judgment, which were admittedly serious, but not on its wider repercussions.

The court found that the government’s Illegal Migration Act, which implements the Rwanda scheme, clashed with human rights provisions contained in the Northern Ireland Protocol and Windsor Framework.

When domestic legislation contradicts EU law, thanks to these Brexit agreements, the judge said that Brussels’ edicts must prevail.

Mr Robinson rightly pointed out that, if asylum seekers could avoid being removed to Rwanda by coming to Northern Ireland, then the province might become a magnet for illegal migrants. In addition, he claimed, with justification, that his party had highlighted problems with these laws, while they were passing through Westminster.

That analysis, though, ignored some of the ruling’s glaring ramifications.

The judge’s decision, which will be appealed, suggested that parliament is no longer fully in charge of legislating for this part of the UK. It confirmed that Brussels rather than London has authority over significant aspects of life here, and its powers range far beyond matters of trade.

That inconvenient fact contradicted directly what the government, and the DUP, told us Safeguarding the Union meant for British sovereignty in Northern Ireland. That document specifically claimed that the Windsor Framework only applied to trade, and that the vast majority of public policy, including immigration, was untouched by its provisions. It said that an ‘automatic pipeline’ of EU law to this part of the UK had been stopped.

In contrast, the High Court found that our human rights laws are in ‘dynamic alignment’ with rules in Brussels. In other words, not only are we subjected to EU law as it stands, but we must implement any changes or additions and follow the way it is interpreted by EU courts.

Let’s remember that Safeguarding the Union was published only in January.

Since then, we were told that the secretary of state would soon stop checks on goods entering Northern Ireland through the so-called ‘green lane’, but that has not yet happened.

The High Court in Belfast quickly struck down sections of the government’s Troubles Legacy Act, claiming that it was incompatible with the protocol and framework. Now, it’s taken the same approach to migration policy, an issue so central to national sovereignty that voters backed Brexit largely to regain control of the UK’s borders.

Last Tuesday, the House of Lords voted to outlaw the export of livestock from Great Britain for fattening or slaughter. This landmark animal protection law cannot be enacted in Northern Ireland, because, you guessed it, the protocol and framework make that impossible.

The British Dental Association has warned that an EU law on fillings, which will apply in Northern Ireland thanks to the protocol, could ‘break’ dentistry here.

All of this has emerged in the few short months since the DUP agreed to Safeguarding the Union. You can be confident that more problems will keep coming up, highlighting that the deal did not achieve what it was supposed to and distancing us ever further from the rest of the UK.

The idea that the government should refrain from enacting bills that will deepen the Irish Sea border, or potentially add extra layers like immigration checks, is reasonable, but it is not sustainable. If two high profile court judgments have already struck down national laws in Northern Ireland, how many more can we expect in years to come?

This case shows, beyond any serious counter-argument, that the DUP should not have claimed that Safeguarding the Union was a comprehensive solution to the most pressing problems with the protocol.

The party’s interpretation of that deal is now being shown up in the most embarrassing ways. And its decision to return to Stormont, which I’ve said repeatedly was defensible if some honesty had been shown, is bound up, in many voters’ minds, with a failing, dishonest agreement struck with a dying government.