Ben Lowry: The divide within the DUP over the primacy of EU law in Northern Ireland has now come to the fore

As Sir Jeffrey began to answer she added or “tomorrow” (Friday) to the question, and he continued his answer on the basis of her original question and said that they were not meeting on Thursday. In fact it later transpired that the officers were in fact meeting yesterday, at an undisclosed location (a previous meeting was abandoned when media were waiting outside).

We have not been able to find out any details whatsoever on what happened at yesterday’s meeting. One participant told me that they had all given strict assurances that they would say nothing to the press.

There has been frenzied speculation that a deal is imminent, although much of this is by the government, by other political parties or by sections of the media or commentators who are willing such a deal along, thrilled at the prospect of a confirmed Irish Sea border.

Such an effort to push things along partly explains the situation, but Sir Jeffrey’s rhetoric has clearly changed a gear. In the radio interview he said that there had been “significant progress” over the talks about the Irish Sea barrier talks in recent weeks, and that “there are still some issues that we are engaged with the government on but undoubtedly we are approaching the time when we will be able to examine where we have got to, the progress that has been made, and perhaps come to some decisions”.

He did not rule out a return before Parliament goes into recess this coming week. He said he had “not come this far to plan for failure”.

In recent weeks the DUP’s rhetoric has shifted as much to the matter of funding as to that of the Irish Sea border. In fact there has been a slightly greater emphasis on the Northern Ireland budget than on the internal UK trade border.

"The DUP has made its position clear and that position is shared right across the party – we want to see the political institutions restored, on a sustainable basis,” Sir Jeffrey said.

So what is going on?

I think a deal is very close, but not certain. Numerous people within the party say that a deal cannot now happen before Christmas, but even so that scenario cannot be ruled out. It would be handy for the DUP to announce its return to Stormont at this festive time, adding to a sense of seasonal cheer and winning kudos among the many people who would like to see a return of MLAs. It would delight those public sector workers who think it will mean a pay rise (as it will – no party has so much as paused to question whether pay rises, at a rate above underlying inflation, should be NI’s highest financial priority just now).

Therefore, whether such a rush return happens depends to a significant extent on yesterday’s party officer meeting. It is my understanding that it was not necessarily a crunch meeting, but that if there had been an overwhelming view then things would move quickly towards a restoration.

Presumably thus it was a sounding board for views among these 12 key DUP members.

My assessment of them is that about five are keen to return, three are not keen, and four could go either way. Even so, I would be very surprised if they did not back a return.

The key question therefore is whether Sir Jeffrey would press ahead if there was only a seven-five vote in favour.

There is a clear divide in the party. What is unclear is the breakdown of the divide, and what the opponents of return will do in the face of a decision to go back.

What is also unclear is how DUP voters will respond. It is often said, fairly, that voters never show any appetite for a more hardline unionist position to the general DUP approach of the last 17 years, which has been one of supreme pragmatism and, on occasion, major concessions (although one member of the party told me it was unfair to present defeats as concessions). Generally I would agree that voters have tended to stick with the DUP, with two notable exceptions: Jim Allister got a huge vote in the MEP elections of 2009, 2014 and 2019, after he had left the DUP, showing a large degree of unionist sympathy for him personally. And last year in the Stormont elections his TUV got almost 8% of the vote, more than Alliance has got in most MLA elections over the last 25 years. This was despite the fact that many unionists voted DUP to prevent a Sinn Fein first minister.

Quite a few people who have their ear to the ground say that a DUP return will go down badly among the grassroots. Some sources also say that there is much more opposition to a return among elected representatives than observers suggest.

We will soon find out.

One thing though is clear. There will be no abolition of the primacy of EU law.

As a unionist paper that covers both sides to this internal unionist debate, we ran on Thursday an essay by Roderick Crawford of the influential Westminster think-tank Policy Exchange saying that such primacy is not as pervasive or intrusive as is claimed. Today Lord Frost, on page 15, rejects such a benign interpretation.

But EU law certainly applies to swathes of the economy, and that has not been up for discussion since the Windsor Framework. In fact, the government obviously thought in the run-up to its deal with the EU in February that it would get DUP support without removing such primacy.

And therefore a split in the DUP on whether or not this is a vital factor has been in the background all along, and has now come to the fore.