Ben Lowry: The divide within the DUP is now clear, and it is over the primacy of EU law in Northern Ireland

The dominant faction in the DUP that wants to return to Stormont, led by Sir Jeffrey Donaldson and supported by one of his predecessors as leader Peter Robinson, has come to accept that the primacy of EU legislation over Northern Ireland trade is a fact that has to be managed and mitigated.

The opponents of return, including Lord (Nigel) Dodds and Sammy Wilson, are not prepared to accept that primacy and say that restoring Stormont under it means a permanent border in the Irish Sea.

One reason this split has been concealed for so long is that few members of the public have much grasp of what the primacy of EU law actually means, and confuse it with checks. Checks on goods moving within the UK to Northern Ireland are a manifestation of the fact that EU trade rules have primacy over NI, but not over Great Britain. This distinction confuses politicians too.

The DUP has been ambivalent because it is torn between wanting to return to the assembly and not wanting to accept EU primacy. This ambivalence has been disguised by the party’s seven tests for assessing whether NI has properly returned to being an integral part of the UK. The importance of the tests have been emphasised at points over the last two years, and not at others. The tests are in any event deliberately open to interpretation – because the party did not want to corner itself.

But the DUP is also torn over so-called ‘dual market’ access to UK and EU, something it has intermittently welcomed. An interview given to Times Radio by Peter Robinson, the former DUP leader and first minister, said he envisaged a deal in which Northern Ireland “could have virtually the best of both worlds with having access in a seamless way, both to the UK market and the European market”.

I often think that if Mr Robinson had not been a politician he could have been a formidable barrister, and his advocacy skills were on display in that interview, and in a later one on BBC Radio Ulster Talkback. He made a plausible case for return, on the basis that the party could only take its boycott so far. He did not repeat the ‘best of both worlds’ comment on Talkback and, when he earlier mentioned it on the Times, he did so in a way that sounded seductive. The problem is that there is no best of both worlds, either UK trade law prevails or EU law does and since October 2019 the UK has committed to letting the EU take charge. Thus there is unfettered goods movement to and from Europe but not to and from Great Britain, our most important trade.

Mr Robinson was signalling a clear move by the party, over which he still wields influence, towards a return to the assembly. But interventions by Lord (Nigel) Dodds and Sammy Wilson MP were the final confirmation that there is now an unavoidable split in the party, not merely a “difference of emphasis” as party figures have so long tried to imply (Click here for Lord Dodds saying that this is a last chance for the DUP to get things right, it can’t happen after a return, and click here for Sammy Wilson saying that Peter Robinson is “fundamentally” wrong to celebrate dual access).

What is now in doubt is the ratio of the DUP split (is it 50:50 on return? 60:40 in favour? 70:30 in favour?). I suspect a narrow majority for.

Also in doubt is how the split will reveal itself if Sir Jeffrey, as has seemed increasingly likely, leads a return (will the opponents leave the party? Will they stay but make clear their unhappiness within the party? Or will the opponents fall silent and toe the party line?). I think the middle of those three.

But many pundits are wrong as to the wider divide within unionism that might be emerging. This week I appeared on BBC One’s The View, but I declined to take part in an exercise filmed in advance for the programme in which commentators were asked to speculate which way various unionists politicians would go if there were only two parties, a progressive one and a traditional one. It was a fun segment but, I felt, patronising. It also had a liberal subtext of: “Now this dear fellow, he seems a nasty chap, but he’s really a decent progressive sort.” etc

DUP politicians such as Paul Givan and Edwin Poots, for example, are supposedly hardline because of their emphatic religious beliefs but in fact, like so much of the DUP, a party that has been in power for more than a decade, they are highly pragmatic.

I wonder if a different unionist realignment could be coming, of those who compromise on cultural and constitutional matters and those who do not.

My own analysis of how unionists need to respond to their predicament has changed over the last 20 years. I was an advocate of liberal unionism, and a move away from a religious fundamentalism that always had minimal support among Ulster Protestants (1% of whom were Free Presbyterian, at that church’s peak). It was clear that pro Union voters, particularly in the east of Northern Ireland, had no interest in flags, in religious dogma, in parades, etc. Attitudes to matters such as same-sex relations were already, by the early 2000s, changing rapidly around the western world and NI was no exception.

But I have seen liberal unionism slide into confusion, and an acceptance of the nationalist line that unionists must always concede on matters of core principle. There is evidence that concessions are bagged, there is no reciprocation, and soon there are demands for more. Belfast’s Irish language policy, which I wrote about last week (click here to read it), is a glimpse of a republican push.

My sense of young unionists is that many of them, for example at the largely nationalist Queen’s University, want to challenge this.

We will soon find out the shape of a deal. Our political editor David Thompson this week asked if the EU was prepared to make any concessions to push things along and it said no. This confirms that EU law will prevail.

The Irish Sea border is a big problem but there are others such as the retrospective vindication of IRA terror and the likely coming use of Stormont to undermine the Union by attrition seem, and these other problems seem set only to worsen.

• Ben Lowry (@BenLowry2) is News Letter editor