By Ernest Walker

In an interview given in September 2020, just weeks before the Northern Ireland Protocol came into effect Jeffrey Donaldson the leader of the Democratic Unionist Party (DUP) made the following comments: “I don’t accept that Brexit has fundamentally changed the constitutional arrangements in the United Kingdom.”, adding “what it has done is changed the way that we trade. What it has done is change the way we do business, but it hasn’t altered the constitution of the UK.” (1)

The DUP along with the European Research Group subsequently voted for the Protocol. He told the BBC’s Spotlight programme that customs checks did not change the constitutional status of a part of the UK. It is difficult to understand, therefore, why the DUP then took their case to court claiming that the Protocol contravened the 1801 Act of Union. The High Court in Belfast rejected the DUP’s claim as did the Court of Appeal and finally the Supreme Court which ruled that the Protocol was legal and did not contravene the Act of Union.

What is surprising is that the DUP voted for the Protocol in the first place with a border down the Irish Sea. It was there to satisfy the EU and avoid a hard border in Ireland. It seems the DUP fell asleep at the wheel, but then they woke up and started to demand the scrapping of the Protocol which was not going to happen. Part of their campaign of opposition was to collapse the Stormont Assembly although many people think that not wanting to serve under a Sinn Féin First Minister was another reason for their action.

THE WINDSOR FRAMEWORK

As regards the Windsor Framework you would have to be a super optimist to think that the DUP would accept it. They still stick to the “Never, Never, Never” philosophy espoused by the late Ian Paisley. The DUP have put forward their 7 tests which would need to be addressed in order for them to accept the Framework. The first one is again the Act of Union of 1801 which has already been ruled on by the Supreme Court in relation to the Protocol, but as far as the DUP is concerned the Framework is no different, so the 7 tests fall at the first hurdle. The other six are in a similar vein claiming that Northern Ireland is being treated differently to the rest of the UK which is anathema to the DUP and their rivals in the Traditional Unionist Voice. However, there are those in the pro-EU camp who support the framework pointing out that it gives Northern Ireland business access to the UK market and the EU single market. The three main parties who support this line are Sinn Féin, the Social Democratic and Labour Party (SDLP), and the Alliance Party, who are unionist with a small ‘u’ and are the Ireland equivalent of the Liberal Democrats. They demand the full implementation of the Protocol including a role for the European Court of Justice (ECJ).

This is all part of their quest for a united Ireland within the EU, Alliance though is non-committal on Irish Unity.  Whilst those of us who campaigned for a Lexit withdrawal from the EU, pointing out some of the anti-worker judgements of the ECJ, the pro-EU parties make no reference to those judgments leading one to believe that they are ignorant of their existence or just do not care.  As regards the DUP their criticism of the role of the ECJ is that if it operates in the North and not the rest of the UK, that is another constitutional question.

When the Windsor Framework was announced Rishi Sunak stood alongside European Commission President Ursula Von der Leyen who made it clear that some EU laws will have to remain applicable in Northern Ireland and that the European Court of Justice will be the final arbiter in any dispute. This conflicted with number 4 of DUP 7 tests, that is “give the people of Northern Ireland a say in making the laws which govern them”, the so-called “democratic deficit”. Sunak may have had this in mind when he also announced that the Framework proposes a potential mechanism to overcome this - the “Stormont Brake”. Sunak claimed that the brake would allow the Stormont Assembly to block the introduction of any new EU law.  However, the process is complex and could only be used “under the most exceptional circumstances and as a matter of the last resort.”  The complexity may be designed to simply put people off bothering as according to Von der Leyen the ECJ will have the final say.

However, the Stormont Brake is unacceptable to the DUP as you have to be in Stormont to trigger it. Anybody who takes the trouble to read it will see that it is nothing short of a bureaucratic minefield typical of the kind of document the EU draws up. “The brake can be triggered by 30 MLAs from two political parties, which is the same threshold as a Petition of Concern (the special mechanism for requiring cross-community consent)” (2) The Petition of Concern was designed to prevent legislation that could be deemed detrimental to one community. Unfortunately, it was used and abused to prevent welfare reform, abortion law reform and marriage equality.

What has to be pointed out is that being part of a territory in which EU rules apply, the north, like the rest of Ireland, is subject to Article 119 of the EU Foundation Treaty which insists that economic policy must be based on the principle of an open market economy with free competition. In that sense the Stormont Brake offers no way to escape the stranglehold of Article 119 over economic investment which the north requires for the social needs for its people and in essence is a meaningless gesture.

The Framework itself endorses a central role for the EU in Irish affairs north and south. That may please the Europhiles but those of us who know the EU for what it is will see things differently.

THE GOOD FRIDAY AGREEMENT

It goes without saying that the continued absence of the DUP from the Assembly means it cannot sit and so the celebrations, if we call them that, on the 25^th anniversary of the Good Friday Agreement (GFA) have been somewhat muted. We have witnessed the over the recent period various articles appearing in the local media which, while welcoming the signing of the GFA in 1998, are also expressing a degree of cynicism about what it has achieved and what it could have done. The Ulster Unionist Party and the SDLP, whose leaders played an integral part in negotiations, have seen their parties now relegated to the periphery of northern politics being replaced by the DUP and Sinn Féin.

Whilst the rise of Sinn Féin both north and south is not surprising, the rise of the DUP who were on the political ropes in 1998 and were in splendid isolation is not so much surprising as worrying. They led the charge against the GFA and are now the biggest unionist party taking a majority of the unionist community with them. The optimism and euphoria of 25 years ago has waned somewhat. It was never going to be an easy road due to the history of the north but at the end of the day people were grateful that it did one thing, it ended the violence at that time. It also allowed people to work openly for their political aspirations like Irish unity.

The functioning of the GFA needs to be reviewed and particularly the situation where one of the two main parties can walk away from the assembly thus engineering its collapse. The Civic Forum, fought for by the NI Women’s Coalition, comprised of the trade unions, business and voluntary sectors needs to be re-established. The GFA is not perfect and operates in a society where institutionalised sectarianism still exists with segregated schools, and segregated housing estates. We also know the DUP did not want to share power with nationalists, they did not sign up to the GFA in the first place. However, despite its flaws, to abandon it altogether would be an insult to the over 3,600 who lost their lives and the thousands who were injured during the conflict.

Prime Minister Rishi Sunak with EU Commission President Ursula von der Leyen at Windsor agreeing the future of Northern Ireland 27th February 2023. Photo by Number 10

What is surprising is that the DUP voted for the Protocol in the first place with a border down the Irish Sea. It was there to satisfy the EU and avoid a hard border in Ireland.