How NI protocol headaches may be the price of Brexit for the DUP

Opinion: the DUP have exploited pre-existing regulatory divergence from Britain many times in the past to create a 'different' Northern Ireland

We recently saw a rare consensus across the political spectrum in Northern Ireland, thanks to the European Commission triggering a clause of its hard-won divorce from the United Kingdom over Covid-19 vaccines. The DUP has since stepped away from that brief consensus with first minister Arlene Foster instigating a petition that calls for a similarly unilateral action by UK prime minister Boris Johnson to replace or scrap the 'protocol', that aimed at preventing a hard border on the island of Ireland.

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From RTÉ Radio 1's This Week, Minister for Foreign Affairs Simon Coveney on the difficuties facing the Northern Ireland Protocol

Many DUP figures have stated that they do not understandably want Northern Ireland to be treated differently than Great Britain within the new economic relationship struck between the UK and EU. The alarm may have sounded when a typically dishevelled and incoherent Johnson advised Northern Ireland Conservatives in late 2019 that they could throw future customs declarations "in the bin". Only two weeks earlier, Johnson’s government had concluded the "oven ready" deal (Withdrawal Agreement) with the EU that stated, in relation to goods entering NI from GB, that duties would be payable on those deemed "at risk of subsequently being moved into the [European] Union".

The protocol's text reaffirms a commitment to protect the Good Friday Agreement (GFA) 'in all its parts’. Notably, the DUP rejected the constructive ambiguity that facilitated the historic 1998 accord, the parties to which agreed that north-south and east-west relationships were "interlocking and interdependent". The British government minister currently chairing a joint-committee to oversee the protocol’s implementation, Michael Gove, was no fan of the GFA either. In 2000, Gove authored a pamphlet titled The price of peace: An analysis of British policy in Northern Ireland which attacked that ambiguity, arguing that "its genesis, framing, selling and implementation all have profound ramifications for the rest of the United Kingdom".

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From RTÉ Radio 1's Drivetime, SDLP MP Claire Hanna and DUP MP Gregory Campbell on the controversy surrounding the Northern Irish Protocol

After an inconclusive outcome to the general election of June 2017, the DUP stepped up to enable the Conservatives to forge ahead with their increasingly incoherent Brexit agenda. This was in return for £1 billion in funding for Northern Ireland during a time when it had no sitting executive or assembly. In 2018, Johnson reaffirmed his predecessor Theresa May's claim, telling the DUP conference "that no British Conservative government could or should sign up to any such arrangement" that put a border in the Irish Sea.

In the wake of recent polling that put the party at only 19%, harnessing opposition to regulatory divergence may be a cynical attempt to galvanise the DUP's electoral base. Only weeks earlier, Foster told the BBC the new trading relationship was a "gateway of opportunity for the whole of the UK and for NI".

Moreover, numerous examples exist where the DUP has exploited Northern Ireland's pre-existing regulatory divergence from Britain in the past. For example, the DUP was able to unilaterally veto the legalising of same-sex marriage in the Northern Ireland Assembly five times between 2012 and 2017. This was achieved through what many viewed as an abuse of the "petition of concern" mechanism, an ambiguous provision of the GFA intended for "key decisions requiring cross-community support", and one not available at Westminster or the Scottish and Welsh Parliaments.

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From RTÉ One's Nine News, report on the findings of the Renewable Heating Inquiry

Then, we had the cash-for-ash scandal. Northern Ireland’s infamous Renewable Heat Incentive Scheme was set up in 2012 by the Department of Enterprise, Trade and Investment while Foster was its minister. A 2016 audit found that it had not included the cost-controls such as tiering of payments or degression that were built into the GB model.

And let's not forget the flags. In early 2013, the DUP challenged Belfast City Council's decision to restrict the flying of the Union flag to designated days only, a compromise that was far short of the fact that "there are no legislative requirements on flag flying" in the rest of the UK. 

Underlining their Brexit headache, the DUP have also utilised Northern Ireland’s electoral laws that enabled the obscuring of the largest political donation in Northern Ireland’s history. This was an alleged £435,000 donation from the Constitutional Research Council which was channelled to the DUP as its intended recipient, the Vote Leave campaign, had already maximised their permitted campaign spending. The DUP ran an ad in the Metro newspaper, a title not published in Northern Ireland, advocating a leave vote during that referendum campaign. 

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From RTÉ Radio 1's News At One, Will Goodbody reports on the 2018 evdience of a whistleblower on how Vote Leave 'cheating' could have swayed Brexit result

Secretary of State for Northern Ireland Brandon Lewis, the man who told the House of Commons that the government was willing to break international law in a 'very specific and limited way', has routinely denied the existence of a regulatory border in the Irish Sea. His Cabinet colleague (and Vote Leave co-convener) Gove simultaneously sought to soften that same border with his EU counterpart Maroš Šefčovič.

For the DUP, their 2017 gamble has repeated the mistake made on a previous occasion in which a political party from Ireland performed the kingmaker role in Westminster. The Irish Parliamentary Party's support of a Liberal government was rewarded with the introduction of a third Home Rule Bill for Ireland in 1912. Ironically, this would eventually be enacted in the Government of Ireland Act of 1920 that allowed for the creation of Northern Ireland. To borrow Gove’s own words, we might consider that the "genesis, framing, selling and implementation" of regulatory barriers within the United Kingdom is the price of Brexit for the DUP.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ