Even when May negotiated a “whole-UK” customs union with the EU, Northern Ireland’s unionists were correct in their observation that this original regulatory sea border lay underneath. Under May’s deal, Northern Ireland would remain tied to single market regulations in perpetuity, without any input from the Stormont assembly or executive. It was only when May was defeated in parliament — three times — that she gave up and resigned. Boris Johnson then emerged and tried to unpick the basic logic of her backstop — and failed. He did, however, at least insert an element of democratic consent into his eventual deal. Under the terms of Johnson’s Protocol, the Northern Irish assembly has the power to reject it — but only by a majority vote. The Good Friday Agreement had introduced government by parallel consent; the Protocol ignored this. Given the very raison d’être of the DUP is to protect the union with Great Britain, why should they have accepted this?
Of course the DUP has also made large strategic miscalculations. Principally, they were far too slow to point out the challenges to the basic functioning of the Good Friday Agreement inherent in both May’s backstop and Johnson’s protocol. They were slow to this in large part because of their ambivalence to the agreement in the first place. It is reasonable to argue that the DUP is guilty of opportunism, using the provisions of an agreement it once opposed to defeat the new thing it now opposes. For this they deserve harsh criticism. They must also now ask themselves how long they can keep saying “no” without undermining the long-term support for the union in Northern Ireland itself — particularly among the professional middle classes for whom the permanent loss of devolved government may be worse than the slow ratchet of divergence from Britain.
Still, let us state clearly the reality of the situation. The Protocol that exists in theory has never existed in practice because it was never fit for purpose. In as much as it functions today, it does so because the UK government unilaterally refused to apply great chunks of it. And yet the people who say the DUP should give way now are the same people who said they should give way then, accepting a deal which has proved unimplementable; one which first of all gave Northern Ireland no democratic input and then only managed to do so on a majority basis. It is not good enough to conclude that the people to blame for this mess are those who were opposed to it from the beginning, rather than those who designed it.
As things stand, the UK and EU are nearing the terms of a deal to soften the reality of the Protocol in order to make it more acceptable to unionists. Inside Number 10, there are hopes that significant compromises have been squeezed out of the EU which could be enough to assuage the DUP’s concerns. Much of the focus has been on the prospect of a “lane” system, which will allow goods to move from Great Britain to Northern Ireland and back without any checks, as well as a compromise on the role of the European Court of Justice interpreting the EU law that applies in Northern Ireland. Alongside other technical fixes, there is hope that such changes should allow the sea border to be as close-to frictionless for internal UK trade as is possible.
Yet the unionist concern is not just one of practicality, but principle. The fundamental problem is that Northern Ireland is not only subject to the current EU regulations, but to future ones as well. This means that over time, even if Britain does not revoke a single piece of EU law or pass any new laws of its own, Northern Ireland will still slowly drift from the UK regulatory orbit by the simple process of being subject to EU democracy unlike the rest of the UK. This process, in fact, has already begun. Take one small example. Since Brexit, the EU has banned the food additive titanium dioxide used in a whole array of sweets, chocolates, icing and the like. This may or may not be a sensible move, but the additive is now legal in Britain and illegal in Northern Ireland.
It is for this kind of reason that much of the internal focus in Number 10 has been to find a way to give the Northern Irish assembly some kind of say on future EU rules, while also providing guarantees about divergence from Britain. While there is some confidence in Downing Street, pessimism abounds among those I have spoken to in the DUP. The DUP has demanded a guarantee that “no new regulatory barriers [will] develop between Northern Ireland and the rest of the United Kingdom unless agreed by the Northern Ireland Executive and Assembly”. The key point here is that any executive must, under the terms of the Good Friday Agreement, include both unionists and nationalists. This demand, in other words, is for what is known as a “unionist veto” over either EU laws or British laws. It is hard to see how this could be agreed, other than in the form of a unilateral guarantee by the British government, which would be tantamount to the UK promising to align itself with any EU laws that apply in Northern Ireland. We would, in effect, be back in the realm of Theresa May’s Chequers deal. It’s hard to see Boris Johnson or Liz Truss accepting such an outcome quietly.
Few unionists I have spoken with are hopeful that the deal eventually agreed will be acceptable. The DUP is likely to calculate it will lose more votes by accepting it than by rejecting it, even if that means rejecting power-sharing indefinitely. One unionist optimist I spoke to put the chances of agreement at 60-40 against.
Should this happen, only the narrowest of paths will remain for power-sharing to return to Northern Ireland. First, the UK government would have to call fresh elections to the assembly, which would be fought over the new terms of the Protocol. It is theoretically possible that the moderate Ulster Unionist Party could emerge victorious on a pledge to go back into government to make the best of a bad situation. It is also possible that an electoral revolution could sweep the anti-sectarian Alliance party into power, overturning the nationalist and unionist duopoly.
The truth, however, is that such prospects are thin. It is far more likely that the DUP will be correct in its calculation that its best chance of avoiding a split and remaining the leading party of unionism lies in rejecting the renegotiated Protocol (should it not meet their demands) and, with it, power-sharing itself. If so, we will be back to where we have always been, the constitutional wound at the heart of Brexit still raw and untreated — perhaps untreatable. Northern Ireland will be governed by direct rule from London and Brussels, the political settlement at the heart of the Good Friday Agreement dead.
Those who profess to support the Good Friday Agreement should not be calling for the DUP to be ignored, but the opposite. The deal now being negotiated between Britain and the EU may be the last best hope of saving power-sharing in Northern Ireland this side of a Labour government, but unless it can win the consent of both communities it will not end the crisis because, in the end, it is a political crisis of consent, not a technocratic one of management. No-one can say they weren’t warned.
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