Has there ever been a more ironically named political party across the UK and Ireland than the Democratic Unionist Party?
The party, enabled by our broken political infrastructure, has graduated from padlocking swings in Ballymena on Sundays to effectively padlocking the doors to our democracy. It is currently holding the existence of democracy in Northern Ireland hostage, at the behest of an issue which they themselves have no idea what the issue being resolved looks like.
Not only that: its leader has decided to abandon the constituents who just elected him as an MLA, to cling to the job security and salary of being an MP. This follows hot on the footsteps of his clear promises to the electorate to the contrary. It is unambiguously outrageous. It is a choice dripping in self-interest, which means that his decision to torpedo devolution will impact every other MLA elected last week but him. It shields his personal finances at a time when his blocking of devolved government plunges NI citizens ever further into the cost of living crisis. It means the only Lagan Valley resident to have successfully voted for its actual DUP MLA is Donaldson himself; a single vote to enable Little-Pengelly to blow in off the TV studio into an area she has never – and has still never – been elected by.
Donaldson’s literal abdication from his MLA role is in and of itself extremely instructive of the DUP’s democratic credentials.
But let’s scrutinise the issue that NI democracy is being sacrificed on the altar of the Protocol.
No real solution sought
Anti-Protocol proponents are not seeking a workable solution; that’s why they propose none.
The protest – the abandonment of devolution – is in itself the goal that many of its lobby sought; the end of devolution and power-sharing has been exactly what a chunk of those screeching from platforms had within their sights. The goal of those from the DUP who engaged with the protests was to increase their vote. Given that both goals are now met, the lobby has no ambition to have ideas on moving forward.
Despite all the platforms, all the anger, all the devoured airwaves and political headspace, no one from the Anti-Protocol lobby have clarified what is sufficient or what real success looks like.
The DUP’s confused “seven tests” are so lacking in detail or examples of what achieving some of the tests would look like, that they cannot be taken seriously or be deciphered. Their tests variously refer to the European Convention of Human Rights being breached, a 220 year old red herring of a statute (the Act of Union) and the spirit of the Belfast Agreement (presumably one of three ghosts that visits Donaldson on the eve of elections). Two of its separate tests are also “no [new] checks on goods going…from Great Britain to Northern Ireland” and that the arrangements do “not constitute a border in the Irish Sea”. Presumably the latter means that even checks on goods going from GB to the EU, via NI, can’t be checked in Larne. Why that ought to be a redline is completely unclear.
Open invitation to join us in the real world
There are four reasons why the Protocol exists. As sure as gravity will catch hold of a falling apple, the Protocol will continue to exist unless one of those truths evaporate. The four issues are (i) that Brexit happened; (ii) that that Brexit happened in the hardest possible way, whereby Westminister elected to leave the EU Customs Union and EU Single Market; (iii) that the EU has used its far stronger negotiating hand to demand no Mainland EU-ROI or ROI-NI customs border; and (iv) a hard Brexit for English voters was and is more important to Westminster than a softer Brexit on equal terms for the whole UK.
Anti-Protocolers don’t wish for (i) and (ii) to change, and can’t impact (iii) or (iv). Therefore there is no world where the Protocol could be fully scrapped.
Anyone claiming its scrapping is what they need to return democracy to us is either ignorant of the Protocol’s mechanics and realities, they don’t actually want the return of democracy or they feel it’s politically necessary in the short term to parade people down a cul-de-sac, and are too short-sighted to see beyond that.
Anyone serious knows that the Protocol won’t go in its entirety; calling for the ‘complete removal of the Irish Sea border’, as the DUP’s tests do, means the same and is therefore also impossible.
If the DUP set this as its bar, devolution will only return in NI if there is sufficient anger at the DUP to force them to accept some Westminster grandstanding (like publishing a hardnosed bill on the Protocol) as enough vindication to cover a U-turn, or if the political infrastructure is reformed, to effectively remove the DUP’s ability to veto NI democracy. However, the former is not a long term fix. When invariably the grandstanding fades away and the Protocol remains, the DUP could just pull the exact same trick again.
A Post-Protocol world
Unfortunately, we somehow never get to the stage of asking Anti-Protocol proponents – and the DUP – to spell out what will actually happen if the Protocol is unilaterally scrapped by the UK or even if Article 16 is invoked.
If unilaterally scrapped by domestic legislation or if Article 16 is used to suspend significant parts of the Protocol (see a fantastic BBC explainer here), it is likely to result in a UK-EU trade war. If the UK refuses to abide by the treaty’s obligations, the EU will inevitably begin to proportionately strip the UK of the treaty’s benefits.
It is impossible to know how quickly and how ferociously the EU would respond, without knowing exactly how the UK would scrap or suspend the Protocol. A very real medium-term possibility is the imposition of tariffs on goods, not just on GB-EU exports but on NI-EU ones too, and those tariffs being applied – and the accompanying avalanche of trade friction – on the NI-ROI border. This will not be comparable to the current Irish Sea border, which is ‘tariff-free’. The Irish Sea border will look flimsier than the DUP’s Five Point Plan compared to the barb-wired concrete of an Irish tariff border, post-Protocol. That is not a victory for unionists over nationalists; it would cripple all of us.
The almighty mess it would create – economically, constitutionally and diplomatically – is almost unimaginable. And yet, that is what scrapping the Protocol is likely to look like, after the painfully drawn out and legally tiresome dust settles. And that is why Westminster will never follow through fully with wreaking the Protocol. At most, it will take the scenic path towards disrupting the Protocol, as a means of increasing diplomatic pressure on the EU. The first step on that path is the anticipated publication of domestic legislation in the coming weeks. They are very unlikely to take any further steps, as that would trigger a game of chicken that could squash the UK.
If the Anti-Protocol lobby or DUP believe scrapping the Protocol in the aggressive way they’ve called for will have any other end point than an economic and constitutional car crash, they’ve failed to explain it. Maybe they’ll start conjuring up fictional technologies that mean trade borders don’t ever need to exist, just as they did years ago. However, I’d go out on a limb and say we’ll never know, as the lobby would never directly answer the question.
The Protocol is a serious problem. Back in 2017, I wrote in the Independent that Westminster pursuing a hard Brexit would mean NI would suffer a hard border, north-south or east-west. I stated that either would be extremely damaging both in terms of undermining the constitutional confidence of one community and economically.
Saying that the Protocol can only be reformed, rather than removed, is not to diminish how problematic the protocol is. It is accepting reality.
Snapping a dislocated shoulder back into place is shatteringly awful to experience, but is necessary after you’ve damaged it. Pretending otherwise won’t fix your shoulder.
There is a possibility that the following might be achievable from negotiations if we are lucky, the EU is generous (as hard as the reality of that power dynamic is for some to swallow) and if the UK has more negotiating success than they have had before:
- The current grace periods are made permanent by the EU (which would be a huge UK diplomatic success);
- a significant lessening of food checks, if the UK embraces SPS alignment (i.e. coming to a veterinary deal with the EU – see a helpful explainer here)
- The EU conceding that there ought to be no checks on goods travelling from GB-NI that are going to be sold from supermarkets in Northern Ireland.
- To assist with that EU concession, the UK allowed trade data to be shared far more liberally with the EU.
- The democratic deficit was dealt with by EU Parliament elections being reintroduced to Northern Ireland, alongside the creation of a Protocol Committee at Stormont, which could call relevant EU and UK officials and politicians for public questioning.
It is now incumbent on the media and opposition parties to demand that the DUP clarify if such a package of reform would be sufficient for them to release our democracy back to us.
Currently, the DUP is a hostage-taker holding up a Spar full of school children, asking for £1 billion, a call with President Biden and a helicopter. The situation cannot be resolved until the DUP are honest with us – and themselves – about what they are actually realistically seeking. That is the very least that they owe us.
I’d also flag that the Anti-Protocol lobby always fails in achieving its aim; the union flag still flies on limited days from Belfast City Hall, Woodvale has still not been marched down and neither has Drumcree, legislation strengthening the Irish language is on the way through Westminster and the Parades Commission still exists.
That is not because unionism is under attack; it is because extreme unionists pick the wrong political battles and wage them in the wrong way.
I’d also flag that after over 3 painful years of Brexit negotiations, and enough no-deal threats to make Noel Edmonds blush, the UK could only negotiate a bad deal which resulted in GB’s trade being damaged, historic job vacancies and sporadic goods shortages (independent article on tariffs post Brexit – Nov 2021) and which harmed Northern Ireland with the Irish Sea Border. Westminster has no track record of coming out of EU negotiations well.
I don’t point this out to be petty, but to show that democracy has been taken from us while we wait for a lobby and a Government which never wins to somehow magic up its most unlikely victory yet. If I told my partner not to eat tea until I run 5 miles under 18 minutes, she’d glance at my park run times and start to fret about whether she can really forgo food for a few years.
Our Great Gatsby tragedy
It is insufferably beyond them, but the DUP need to break from their intrinsic short-termism and ask where they see this approach taking Northern Ireland in 6 months, a year’s time and two years’ time.
Donaldson’s – since challenged – claim that the Protocol is exacerbating food prices in NI is one thing. But have the DUP considered what the counter-economic cost is, of no devolution and/or a trade war between the UK and the EU?
Have they also scrutinised what the actual leverage they think they are creating is? As taking a step back, in the full light of day, it’s bleak: they are banking on Brussels caring more about devolution existing in Northern Ireland than the DUP does. They are hoping that the food insecurity and child poverty that will be exacerbated by this great abdication of responsibility will pain EU diplomats and technocrats more than it does the DUP. Parents will in increasing numbers forgo eating so as to feed their children, for the sake of what is ineffective and meaningless grandstanding. Those hunger pains will be real, for the sake of a protest that has been instigated without any actual thought about what would be enough to end it. It is beneath contempt and is the most complete example of why the DUP is not fit for governing, and why NI’s political infrastructure is fatally flawed for enabling this charade.
So in summary, scrapping the Protocol is not possible and we have no idea if its reform – which in itself would be extremely hard-fought – would be sufficient for the hostage to be released. After an election with another positively high turnout, democracy was immediately stolen from us. Most worrying of all, such daylight robbery is becoming normalised.
James Joyce’s nightmare is well known, and it still encircles us. Its hard not to feel that until we free Northern Ireland’s democracy of the shackles of the mandatory coalition and the rest of its wholly unworkable political infrastructure, it will continue to imprison progress and reward our politics’ worst instincts. This year it is the Protocol; previously it was Irish language and the RHI scandal. The reason our democracy keeps being stolen from us morphs, but how easily we allow ourselves to be robbed remains. As Gatsby suffered, we will too: “So we beat on, boats against the current, borne ceaselessly into the past.”
Michael is from Kells, Ballymena, and began writing comment pieces alongside his job following graduating in law from Cambridge. In particular, he has written for the Independent (UK); one of these featured on the The Times Red Box and several of which were republished by the Belfast Telegraph. He has also written for Legal Cheek. He is a commercial litigator at a London city law firm.