Owen Polley: A decision over the Northern Ireland Protocol looms for DUP and Jeffrey Donaldson

Last week, Frost confirmed that negotiations over the Northern Ireland Protocol will continue into the new year.

There was an expectation, now in shreds following his resignation, that the government would trigger the protocol’s emergency brake, Article 16, if the EU refused to accept its plans to restore Northern Ireland’s place in the UK internal market.

Ministers could use this mechanism unilaterally to suspend contentious aspects of the sea border, pending legal proceedings and an arbitration process.

This failure to follow through sharpens the dilemma of the DUP leader, Sir Jeffrey Donaldson. For months, Sir Jeffrey has threatened to stop his party participating in Northern Ireland’s political institutions, if the sea border is not removed.

The first deadline for this policy was supposed to be the end of October.

That date came and went without any action. Donaldson said he was prepared to give the process “a little more time”, because the EU had reopened “serious negotiations with the UK government”.

“No reasonable person could deny that this represents significant and positive progress,” Sir Jeffrey claimed.

Nearly two months later, that progress has not been sustained and the key advocate of Northern Ireland’s place in the Union has gone.

Last week, on the eve of a meeting with Brussels’ negotiator, Maros Sefcovic, the DUP leader issued another statement.

“The (DUP’s) continued participation in the political institutions is not sustainable in the absence of action to remove the Irish Sea border,” he warned. There exists, “A small window of opportunity to begin the process of restoring Northern Ireland’s place within the UK’s internal market.”

Donaldson has reiterated this threat on several occasions. The message, “I’m going to do it, really I am ... but not yet,” is not sustainable indefinitely.

Every time he repeats this mantra, whether it is aimed at pressurising the EU to stop being intransigent or directed at the government’s failure to trigger Article 16, the DUP leader loses credibility. And credibility is a precious commodity with an assembly election looming next May.

Now the last man who seemed determined to give Brussels a hard time has gone. And all signs suggest that the government will capitulate to its demands.

On the 1st of January the UK introduces new border controls that treat EU imports more like trade with the rest of the world. Goods from the Republic of Ireland will be exempted from these requirements.

This decision was described as a “pragmatic act of goodwill” aimed at maintaining “space for continued negotiations on the protocol”.

A cynical interpretation is that the infrastructure required to implement controls at Holyhead and other ports is not ready, so the government had little choice. But it’s a curious idea that the protocol negotiations need more space, whenever they have already overrun so seriously.

Britain has also reportedly dropped its demand that the EU’s legal jurisdiction over Northern Ireland be removed. The European Court of Justice will have the “final say on matters of EU law as it is applied in NI” according to the Daily Telegraph.

Unlike other figures in the government, like Michael Gove, Lord Frost consistently diagnosed problems with the protocol accurately. He said that it asked the UK to “run a full-scale external border of the EU through the centre of our country”. He understood that the main issues were constitutional rather than economic.

The government’s command paper, which he co-authored, proposed changes that would have dealt with these difficulties. If goods for Northern Ireland could move here from GB without impediment, if British rules and standards governed products for sale in our market and if the EU’s judicial authority over our economy was removed, then the protocol would be effectively defanged.

Now the government is retreating from that position rapidly. The chancellor, Rishi Sunak, reportedly wants a less confrontational approach and the worst elements of the Conservative party, like the appalling, nationalist-friendly former Northern Ireland secretary, Julian Smith, are jubilant.

Liz Truss is an interesting appointment. She has made a reputation as a tough, Margaret Thatcher type figure. She has an opportunity to enhance that image by protecting the integrity of the UK.

Jeffrey Donaldson must hope that that reputation is deserved and the UK triggers Article 16 early next month. But what chance is there of that, now that Lord Frost has resigned?

It is far from clear that Donaldson’s party would benefit from collapsing the executive or that the government and the EU would respond by addressing the DUP’s concerns. But unionists need some effective way of showing the seriousness of their opposition to a protocol that destroys important aspects of the Union.

When the DUP leader made the threat to remove his party from the institutions, he needed it to produce results quickly, or he had to be prepared to follow through.

One way or another, he cannot delay the decision much longer.

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