Brinkmanship in Northern Ireland. Credit: PAUL FAITH/AFP via Getty

February 21, 2023   8 mins

Northern Ireland is the Brexit wound that will not heal. Britain’s fourth prime minister in as many years now finds himself in the same position as all the others: locked in a defining battle with Brussels, seeking an answer to the apparently unanswerable border dilemma, squeezed by EU red lines and recalcitrant unionist opposition.

And yet, where there is discord, there is at least a degree of harmony. Speak to almost anyone in London, Washington, Brussels or the great capitals of Europe and you can be sure to hear the same diagnosis: Northern Ireland’s unionists only have themselves to blame. It was they, after all, who campaigned for Brexit; they who rejected Theresa May’s “all UK” backstop; and they who then championed Boris Johnson. Now that they have found themselves locked behind an Irish Sea border, they can hardly complain, let alone be allowed to blackmail their way out of trouble. As such, according to conventional wisdom, Rishi Sunak must finally get tough with the DUP and, if necessary, simply impose whatever deal he reaches with Brussels for the good of the nation, for Europe, and even for Western unity itself.

If you believe this is somehow an answer, however, I’m afraid you too are part of the problem. Of course, the DUP has made serious mistakes along the way, but the political crisis in Northern Ireland is not some desperate stunt by embarrassed unionists seeking a technocratic fix. Far from it. It is one of substance, principle and politics — and, if anything, it is not the DUP whose judgement has been shown to be lacking throughout this whole sorry affair, but that of its many critics intent on trying the same essential solution no matter how many times it runs into the same problem.

At heart, the DUP is both correct in its central analysis of the Protocol, and also correct to be sceptical about the prospect of the EU changing its position sufficiently to address its concerns. Strip away the fluff and the DUP’s central concern is — and always has been — reasonable. Under the current arrangements, Northern Ireland will inexorably diverge from the rest of the UK without unionist consent, challenging the basic political settlement of the Good Friday Agreement.

From the beginning of this crisis, far more attention has been given to ensuring there is no physical infrastructure on the land border than on protecting the power-sharing political settlement at the heart of the Good Friday Agreement. While these two objectives are connected, they are not the same thing — as we are now discovering. After six years of negotiations, there is every chance we will end up with the former but not the latter.

In essence, the Good Friday Agreement is a grand political compromise in which Irish nationalism accepts the continued existence of Northern Ireland as a sovereign part of the United Kingdom for as long as a majority of the population consent to it. In return, unionism accepts the end of majoritarian rule in favour of permanent power-sharing. The reason Brexit has proved so difficult is because there is no obvious way for the UK to leave the EU that is politically acceptable in Westminster and both communities in Northern Ireland. Constitutionally, however, the starting point for the negotiations should have been for Northern Ireland to leave the EU on the same terms as the rest of the UK — unless a specific set of arrangements could be agreed by both communities.

The problem is that the exact opposite of this happened, as London and Brussels flipped the problem on its head. In December 2017, Theresa May agreed a deal which meant that whatever happened in the future, Northern Ireland would remain permanently anchored to EU law to ensure there was never any need for a land border. From this moment, the challenge became not how to ease the land border to make it acceptable to nationalism, but how to ease the sea border to make it acceptable to unionism.

This was never some mere practical tweak, but a significant constitutional change which unionism understandably rejected but has never been able to reverse.

Unless Sunak is able to negotiate a different outcome, Northern Ireland will remain permanently locked to certain EU laws. These laws can change without Northern Ireland’s consent and will only apply in Great Britain if the UK government decides to follow suit. For as long as this is the case, Britain and the EU can agree as many clever ways of managing the border as they like, but the ratchet will remain, pulling Northern Ireland away from the rest of the UK to keep it tied to the Republic.

By pointing this out, Northern Ireland’s unionists are not being unreasonable or reactionary, though there are certainly many within the party who are both. They are simply describing the reality of the arrangements that have been agreed without their consent. And what is more, just as they have long warned, and the Irish government has long known, the effect will almost certainly be the permanent collapse of power sharing in Northern Ireland.

The blame for the current political crisis in Northern Ireland, therefore, rests far less with its unionists, and far more with those who laid the intellectual foundations for what is currently in place. Yet we continue to look away from this basic reality.

It was Theresa May who made the commitment — not required by the Good Friday Agreement — that there could be no physical infrastructure on the land border under any circumstances.The Irish government also pushed for this settlement, knowing full well the strain it would place on power-sharing. May’s commitment was unprecedented and constitutionally transformative. Originally, she had promised only to avoid a “return to the borders of the past”, which was a perfectly reasonable commitment well within the confines of the Good Friday Agreement. By going further, May placed Britain on an inexorable path either to a soft “high alignment” relationship with the EU, in order to rub out the regulatory border she had agreed within the UK, or to a sea border to ensure Britain would not become a rule-taker from Brussels. In truth, she could deliver neither.

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’ĂȘtre 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.

is UnHerd’s Political Editor. He is the author of Betting The House: The Inside Story of the 2017 Election.