The signal has gone out that unionism is weak and will always give in

Jamie Bryson is NI Director of Policy, Centre for the Union, a think tank focused on preserving all aspects of the United Kingdom of Great Britain and Northern Ireland. Here he critiques the DUP’s past claims to have cut the pipeline of EU law.

“If there is a choice between remaining in office or implementing the Protocol, the only option for any unionist Minister would be to cease to hold such office”

The words, on behalf of the DUP, of Gordon Lyons shortly before the party collapsed the institutions in opposition to the Protocol (renamed the Windsor Framework for a lick of red, white and blue paint, but for present purposes for consistency we shall stick with the Protocol).

The party further pledged “unalterable opposition” to the Protocol and Irish Sea border via the Ulster Day 2021 declaration, and consistently demanding the restoration of Article 6 of the Acts of Union and Northern Ireland to be returned to a full place of the UK internal market (Lord Justice McCloskey correctly concluded that as a result of the Protocol, NI “belonged more to the EU single market than the UK market”).

In January 2024, the DUP proclaimed they had a deal to allow them to return to Stormont. That, one would have suspected, would have had to include removal of the Protocol and Irish Sea border because if it did not, applying the party’s own logic as articulated by Gordon Lyons, how could any unionist Minister hold office?

The ‘Safeguarding the Union’ deal was sold by Jeffrey Donaldson and those around him as the greatest thing since Moses descended with the tablets of stone. The DUP issued a glossy graphic on their party social media setting out a number of bold claims including that they had restored NI’s place in the UK single market, protected the Acts of Union, “cut the pipeline of EU law”, abolishes the duty to have regard to the “all-Island economy”; and “removes checks for goods moving within the UK”.

The deal also proclaimed that the Protocol did not touch on matters other than trade (paragraph 49) and stated that the UK Government would never again treat or speak of NI as third (foreign) country vis-à-vis GB (paragraph 60).

In addition to these claims Jeffrey Donaldson went even further, claiming that ‘dual market access’ which requires NI following EU law (despite claiming he had “cut the pipeline”) was something he wished to preserve, and then further adding that he had secured “zero checks and zero customs paperwork” on goods moving GB-NI and staying there.

This is the basis upon which the DUP returned to Stormont. Therefore one year on, it is worth examining how solid this foundation is (or indeed it ever was).

In April 2024, the DUP had gently tried to back-track on their boldest claims after Jeffrey Donaldson’s resignation as leader for well-publicised reasons. No more had the Irish Sea border gone, but it would be “going…in the Autumn” and at that stage, we would see the fruit of the deal with a direction to halt all checks. It is obvious to point out that has not transpired.

In his New Year’s message concluding 2024 Gavin Robinson stated the DUP had a mandate to remove the Irish Sea border, restore NI’s place to the UK internal market and end the application of EU law. This illuminates the odd year it has been for the party.

At the close of 2024 they are telling the unionist electorate they aim to achieve that which they had already achieved, or so they claimed, at the start of 2024 and that remarkable achievement is the basis upon which they are presently operating power sharing.

In respect of the claims made prior to that: the Irish Sea border far from being gone, is being hardened. Indeed, rather than remaining asymmetric, tentative steps are now being taken to put in place a (initially) soft NI-GB border. There is not “zero checks and zero customs paperwork”, but more than ever.

Far be it from the pipeline of EU law being cut, it pervades across every aspect of the laws that govern us and has operated to strike down two Acts of Parliament (the Legacy Act and Illegal Migration Act), thus confounding paragraph (49) of ‘Safeguarding the Union’. NI continues to be treated as third country (as recently as via the Official Control (NI) Regulations 2024).

The Government has made clear they won’t be repealing the ‘all-Island economy’ duty at all. The Acts of Union remain subjugated and in suspension, and in my case brought just before Christmas that the ‘constitutional legislation’ the DUP claimed restored the Acts of Union, in fact had the effect of embedding the very subjugation it purported to remedy, whilst claiming to do the opposite.

It is clear therefore that of all the substantive claims made by the DUP to justify their return to Stormont, there is barely one which has stood up to (or could ever have stood up to) the most elementary scrutiny. That begs the question therefore, just what is the basis upon which the DUP are in a power sharing Executive implementing the Protocol and Irish Sea border?

There are some who may feel that devolution is so important (I wouldn’t share their view) that even implementing the subjugation of the Union is a price worth paying (and if you will pay this price, what price wouldn’t you pay?), but if that argument is to be made then at least make it honestly and accept the political cost, but do not pretend there is no Irish Sea border or worse still gaslighting the unionist community by claiming Stormont provides some sort of tool to fight against it.

We have seen just how flawed that analysis is with the ‘consent’ vote; a vote which for a Protocol which purported to be all about “protecting the Belfast Agreement in all its parts” strangely operated on the basis of disapplying- to the detriment of unionists- the core safeguard of cross community consent.

And, absurdly, in the review this triggered the Government then made clear that whilst cross community consent was disapplied to impose the Protocol and Irish Sea border, any ‘solutions’ to remove it would be subject to a cross-community (and thus nationalist) veto.

This was followed by Monday’s (20th Jan) rejection of the Stormont Brake, described upon their return to implement the Protocol by the DUP gushingly as their “powerful tool” to “end dynamic alignment with EU law”. As many of us pointed out, the Brake is utterly useless, and that the only defence Gavin Robinson is left with is to argue it is ok because the divergence can be prevented if GB aligns itself to EU law which prevails in NI.

This of course not only continues to leave NI colonised by the EU, but uses NI as a ratchet by which to drag the whole UK back into the regulatory orbit of the EU.

The perpetual calculated mockery and derisory attitude toward unionism makes the DUP (and UUP) participating slavishly in power sharing all the more pathetic and weak. It has signalled that there is no insult too great, no price that unionism will not pay.

The binary choice should always have been ‘Belfast Agreement power sharing or the Protocol, but never both’. The DUP’s capitulation based on a deal which cannot bear the weight of its own propaganda has instead rewarded those who would do vandalism to the Union.

That will undoubtedly encourage those opposed to the NI’s continued existence. The signal has gone out that unionism, at least as represented by the two largest unionist parties (DUP and UUP), is weak and will always give in.

That, in the long run, is perhaps even more detrimental than even the abominable Irish Sea border.