The Protocol Bill: the DUP’s last great hope…

The DUP has been reassured that the UK Government is committed to getting the NI Protocol Bill (the Bill) through Parliament. The Bill is designed to provide for unilateral UK power to disapply elements of the NI Protocol itself in certain conditions. Currently in the Report Stage in the Lords, it is approaching the end of its journey through Parliament before it’s indeterminate ping pong between Houses.

The DUP has had reassurances that the current government’s leadership intends to pick up where failed PM Liz Truss left off. Simultaneously, UK Government mood music this week suggests that the Protocol is here to stay, albeit with minor tweaks. The Bill therefore, is likely to be the only ladder that Westminster can offer the DUP leader to de-escalate the current impasse, along with some cosmetic tweaks to Protocol operation itself.

The trouble is that the Bill, commenced in July 2022 was reportedly put on ice on the appointment of PM Rishi Sunak. Seven months on and with over 70 Conservative Party MPs abstaining from the First Reading vote, suggests it will be less than plain sailing to get the Bill through in its originally intended form. Indeed, the Conservative Party’s current working majority of 69 suggests that it may have some difficulty clearing the final stage without being significantly amended to resemble something which the DUP will struggle to sell to its acolytes as a win for unionism. Opposition Leader Keir Starmer’s pledges of support to approve a deal with the Conservative Government to restore NI power-sharing might be well intentioned, but can he convince his Parliamentary Labour Party to go as far as supporting breaching international law?

The unsavoury element for English MPs is that to deliver this Bill will see the UK Government labelled as habitual breakers of international law. It therefore represents reputational risk that Britain cannot be trusted to uphold international agreements, something a large cohort of MPs would wish was reconciled to the endemic transgressions of the Johnson era. It is, something which bluntly, will burn bridges between the UK and its EU and international counterparts, which doesn’t speak to the ‘Global Britain’ approach that HMG has been advancing of late.

The underlying issue with the Bill is that it cannot reasonably fulfil all of the DUP’s seven tests. An added difficulty will be the DUP’s ability to sell such a climb down to hard-line loyalist and unionist fanatics. Reflecting on the Centre for the Union’s recent flatlining ‘policy’ paper attempt, replete with spelling mistakes and pipe dreams, it suggests that they will not be content with the Bill, as they remain in opposition to the very existence of the Protocol itself. In reality, it is highly likely that the Protocol will stay (albeit amended), and so it is incumbent on the DUP leader to land it, or else lose unionism’s most hard-line supporters to the TUV. On pre-election footing, the DUP will be cognisant that splits in unionism will cost Council and Assembly seats, demonstrating further ideological fragmentation and decline.

The DUP's 7 tests are there to offer flexibility. But make no mistake, this is the one chance to get issues resolved.

DUP strategy has raised the issue up the agenda, now we need to see meaningful & fair action and agreement that addresses issues.

Nothing less will suffice

— Emma Little-Pengelly BL (@little_pengelly) January 12, 2023

Notwithstanding this, the DUP’s Emma Little-Pengelly MLA subtly altered the narrative in a Tweet on Thursday evening, stating that the seven tests existed to offer ‘flexibility’ (as opposed to their previous pronouncements as ‘red lines’), indicating a DUP that is rapidly aligning itself to accept that the tests will not be met. The DUP, despite its strategic ineptitude, understands that it is backed into a corner and must now conduct damage limitation if it is to sell any positives to its electorate after its calamitous Brexit miscalculations. The reality is, that any acceptance of the Protocol will amount to wholesale capitulation and acknowledgement that the international trade border between NI and GB is there to stay. Fundamentally, the fact will remain that NI will continue to be further distanced from the economic and legislative remit of GB, departing from what was once a unitary state; ultimately not a sign of a strengthened Union under the DUP’s watch. Even if Sir Jeffrey can sell the complete package as a win for unionism, there is no guarantee that the UK Government will actually unilaterally disapply any provisions of the Protocol, creating another democratic deficit that could see the DUP’s representations once again ignored at Westminster; after all, they are a small fish in a big pond.

Similarly, the UK Government will be keen to demonstrate some progress to entice the DUP back into office in time for POTUS’ currently ‘tentative’ visit scheduled for early April. That said, running down the clock on the DUP’s side may well play into a course of action that sees Good Friday itself come and go with no visit or celebration, something that would play well with their electoral grassroots who view co-guarantors of the Good Friday/Belfast Agreement as unnecessary interference.

Regardless, Sir Jeffrey certainly has many uncomfortable conversations and leg work to do between now and then, but it is not beyond the realms of the possible. With that in mind, is he wise to once again place trust in his English counterparts to keep up their end of the bargain?