Ben Lowry: Unionist choice on deal is not as said between the 'unpalatable' and the 'disastrous' as it is between two disasters

To understand the origins of the current crisis over the Irish Sea border, go back to UK-EU long stalemate over Brexit from 2016 to 2019.
The choice is between accepting the prevalence of EU laws in Northern Ireland or the perils of an ever suspended Stormont, perhaps leading towards a form of joint authorityThe choice is between accepting the prevalence of EU laws in Northern Ireland or the perils of an ever suspended Stormont, perhaps leading towards a form of joint authority
The choice is between accepting the prevalence of EU laws in Northern Ireland or the perils of an ever suspended Stormont, perhaps leading towards a form of joint authority

London’s various plans to keep the Irish land border free-flowing were rebuffed by Brussels which, backed by the Irish government, rolled its eyes at various technical suggestions for the land frontier, some of which were endorsed by international customs experts. The UK is still not coming up with serious proposals, they sighed.

But outside of this newspaper, there was little analysis of what was really going on. Ireland was not just rejecting UK suggestions for managing the border, it was actually rejecting any change in the trade legislation that governed Northern Ireland because it would cause a divergence with the legislation that governed the Republic of Ireland, even if the change was physically invisible at the border. But Ireland pretended it was unhappy with the various alternative proposals to handle checks.

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In other words, even if we had lived in a world in which some fantastical type of perfect technology was able that was able to know exactly what was in every vehicle crossing the border and assess it without any stop or interruption, Ireland (backed fully by the EU) would still have rejected it. Their opposition was more fundamental than the checks: it was to any change in the underlying laws that govern trade in Northern Ireland.

I reported on an articulation of this Irish intransigence in November 2017, just before the UK capitulated to Irish demands in the backstops of December that year. Simon Coveney told an audience in Belfast that the Irish government would not accept checks even if they took place at a farmyard in Ballymena, because it would still be border infrastructure and “we will not stand for it”.

It has taken six years for the implications of this Irish position to be understood. Dublin decided, particularly after Leo Varadkar replaced Enda Kenny as Taoiseach in June 2017, that it would focus on the matter of which trade laws had primacy in NI, which – if it got its way and EU law prevailed – would negate the need for checks.

A serious failure of unionism since Brexit was to see what was going on, and to insist on the reverse: that there would be no ‘regulatory alignment’ with the EU if that meant regulatory divergence with Great Britain. Unionism did over the last year or so begin to emphasise the crucial underlying matter of which laws prevail, and insisted that it must not be EU laws, but this demand was not in the DUP seven tests of mid 2021, and the primacy of EU laws is not now being emphasised by the party leadership. Doing so would eliminate their wriggle room to return to Stormont.

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The deal that has been announced by Rishi Sunak is a notable improvement on the trade position that prevails at present, of a half implemented Northern Ireland Protocol. And that prevailing current position (of semi implemented protocol) is itself far better than a rigorously implemented protocol, which would have inflicted ruinous harm on cross Irish Sea movement of goods.

But the new agreement does not end the dominance of swathes of EU trade regulations over Northern Ireland, and was never likely to do so because the EU was not even prepared to negotiate that. This puts unionism in a bind.

The Brexit process has flushed out many challenges for unionism. One is the near silence of business leaders in defence of Northern Ireland’s by far biggest market, that of East-West. When it became clear after the 2017 backstop and the 2019 protocol that no business group of note was prepared to issue a specific defence of that crucial trade, I suggested that a new group be set up. Nothing has changed.

The huge TV audiences for Nolan Live and The View on BBC One Northern Ireland on Wednesday and Thursday nights heard from two business representatives each, who were strongly pro the Windsor Framework. Four pro, none anti (although there was a brief video appearance on Nolan from Peter Summerton, the haulier who has been scathing about the paperwork caused by the protocol and still fears paperwork under the framework, see link below to his thoughts).

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The new deal achieves its biggest successes around issues such as medicines, which will now be available in NI if approved by UK regulators (what a failure of Boris Johnson’s deal that it was ever otherwise). There is disagreement over the significance of the coming Stormont ‘brake’ on new EU regulations applying here. I talked to two highly informed Westminster figures yesterday who had opposite assessments of that (we will report more on the brake next week).

The brake only relates to new regulations. The economist Dr Graham Gudgin wrote on these pages yesterday that the deal “softens the application of the protocol” but “arguably increases the scope of EU law” (see link below).

Another important economist, Dr Esmond Birnie asked via this newspaper for clarification on four aspects of NI being subject to such EU law: the lack of duty free on flights between NI-EU, unlike between GB-EU; the implications for tax devolution; whether we need EU permission to develop a free port; NI’s ability for full participation in any UK-wide free trade agreement (see link below).

This week Rishi Sunak wrote a long article for the News Letter, to which the web version of this article will link (see link below). I understand that Downing Street plans to rebuff criticisms of the deal, and look forward to hearing its explanations.

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Mr Sunak nodded to unionist concerns when he played down the much hyped ‘all island economy’ and pointed out that East-West was far more important. Defenders of the prime minister say that the UK has been greatly constrained in what it can do since Theresa May in 2017 conceded to Irish demands on the supremacy of EU law in NI. That may be so, but this is all still a big ask of unionists.

The respected former UUP Stormont minister Dermot Nesbitt, who was one of the negotiators of the Belfast Agreement, and who has written in this paper about how it “beggars belief that unionists say nothing about how the NI Protocol breaches international law” (see link below), this week endorsed the Framework Agreement.

He said on BBC Radio Ulster Talkback on Thursday that unionists had to choose between “the unpalatable” (eg the primacy of EU law) and “the disastrous” (rejection of the deal). Mr Nesbitt’s assessment of the options was then put to the only critic of the deal on The View, the ex UUP chair David Campbell. This was unfair, because it suggested that Mr Nesbitt has made a correct assessment of the options.

I think unionists have to decide between two disasters: between being fundamentally outside the UK internal market, something no unionist can properly embrace, and between the grave perils of an ever suspended Stormont, perhaps leading towards joint authority.

Ben Lowry (@BenLowry2) is News Letter editor

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