The DUP support for a regulatory border in the Irish Sea in 2019 was a catastrophic error — one of the worst unionist mis-judgements of recent history

DUP politicians have in this newspaper repeatedly spoken as if the party never agreed a regulatory border in the Irish Sea (see links below).

Peter Robinson (September 17) praised the DUP’s latest position on the NI protocol and he criticised other unionist responses to it.

Lord Dodds (September 6) wrote that the DUP “pointed out all along” the dangers of a “regulatory border”.

Lord Morrow (April 17) said “it should have been obvious that almost no unionists could support a border in the Irish Sea”.

Indeed earlier this year Lord Dodds (March 29) took issue with the suggestion in a News Letter editorial, that the Democratic Unionist Party, “did agree a regulatory Irish Sea border in early October 2019”.

There are other times when the party has pushed back on such a claim.

On Saturday January 16, Arlene Foster, writing in the News Letter, stated that “some also claim that the DUP consented to a border in the Irish Sea in October 2019. This is nonsense and not grounded in fact”.

Given that the allegation is being repeatedly denied by the party, and given that no-one seems to be looking into the history of DUP decisions at the time, it is worth recapping on what happened.

Lord Dodds claimed in March that the 2019 arrangements which the DUP supported would have ensured that Northern Ireland was out of the single market with the rest of the UK, but it is clear from the prime minister’s letter to Jean-Claude Junker on October 2 2019 that the proposal provided, “for the potential creation of an all-island regulatory zone on the island of Ireland covering all goods including agrifood”.

If true, the allegation that the DUP agreed a regulatory Irish Sea border could represent probably the single greatest mis-judgement by a unionist political party in recent history; if false, it is important that such an allegation is not unfairly repeated by party political opponents.

Either way people have the right to know the truth.

This matters because at the time it was suggested by the media that the DUP’s position represented an unprecedented u-turn by the party and by political opponents as an error of judgment.

Up until October 2 2019 the DUP had resolutely opposed any regulatory border in the Irish Sea. This was one aspect of its justification for opposing Theresa May’s backstop proposals which involved a softer form of Brexit.

It was disappointing that Lord Dodds in March appeared to attempt to ‘close down’ debate on the matter by saying it was time to, “end the blame culture” and claiming that the allegation, “serves only to sow the seeds of division in the campaign within unionism to oppose the Northern Ireland protocol through concerted legal and political action”.

Such a position does not fill the reader with confidence that the analysis offered by the DUP is going to bear detailed scrutiny.

Lord Dodds claimed that there has been a, “rewriting of recent history to wrongly apportion blame within the unionist family”, seemingly oblivious that the DUP’s support for Boris Johnson’s October 2 2019 proposals were, rightly or wrongly, widely condemned by other unionist parties at the time.

In response the then DUP leader said that these proposals were, “a serious and sensible way forward”.

Those who wish to read the details for themselves and make their own assessment can find them in the government document link below.

Lord Dodds claimed that these arrangements would have ensured that Northern Ireland was out of the single market with the rest of the UK, but it is clear from the prime minister’s letter to Jean-Claude Junker on October 2 2019 that the proposal provided, “for the potential creation of an all-island regulatory zone on the island of Ireland covering all goods including agrifood”.

The elimination of all regulatory checks for trade in goods between Northern Ireland and Ireland would be achieved by, “ensuring that goods regulations in Northern Ireland are the same as those in the rest of the EU”.

This would have involved checks at Northern Ireland ports and airports relating to the single market to ensure goods comply with EU regulations.

These are essentially the same as the regulatory checks which are now being required and described by all unionists as a border down the Irish Sea.

The DUP’s sole justification for this is that the October 2 2019 arrangements would have provided for, “democratic consent for any specific alignment between Northern Ireland and the EU – and therefore any regulatory divergence with Great Britain – both before they entered force and thereafter on an ongoing basis”.

While this defence is worthy of detailed consideration, I regard it as unsatisfactory for the following reasons.

Many unionists regard the potential creation of such a regulatory Irish Sea border as constitutionally unconscionable and politically unacceptable as a matter of fundamental principle and a development which should not have been countenanced under any circumstances.

Arlene Foster previously claimed, “it’s been very clear all along that has been our one red line – that we cannot have either a customs border down the Irish Sea, or a regulatory border because that would make us separate from the rest of the United Kingdom”.

She also stated, “Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom”.

It is beyond dispute that the deal the DUP supported on October 2 2019 did not satisfy the then DUP leader’s ‘blood red lines’.

While ‘prior’ consent was theoretically required before the Irish Sea border would come into force, it was never seriously suggested by the DUP, having supported the prime minister’s proposals, that such initial support for the new arrangements would be withheld. Indeed, to withhold initial consent would have made a mockery of what had been proposed.

This initial consent was therefore no more than a mere formality by which unionists would provide the impression of having a veto when it did not meaningfully exist.

At a conceptual level it is hard to see how unionist acquiescence for undermining our position in the United Kingdom makes this situation any more acceptable.

The notion of an ongoing consent role for the Northern Ireland Assembly is also misconceived.

Having granted initial consent there would have been no further meaningful role for the Northern Ireland Assembly for the next four years. During this time Northern Ireland would have been subject to a wide range of laws in relation to the single market for goods.

Meanwhile over this period Great Britain would not have been subject to this EU law and during this period would have diverged from the EU and Northern Ireland.

Moreover even if the arrangements would not have continued after four years, given the assembly’s cross community voting arrangements there is no obvious assembly route to realignment with GB regulations against the opposition of nationalists.

Perhaps even more importantly at a practical level, the cross community consent provisions which would theoretically have given unionists in Northern Ireland a veto in four years time never stood the slightest chance of being accepted by the EU.

They represented the opening position by the UK government and were always going to be watered down in negotiations. Inevitably this is exactly what happened.

Mark Devenport, BBCNI’s political editor at the time, writing on October 7 2019 proved prescient when he stated, “the nightmare, from the DUP’s perspective would be if, having conceded on the principle of aligning with the EU, the mechanism of consent agreed by the UK did not deliver a unionist veto”.

The BBC also reported that Raoul Ruparel, a Brexit advisor to Theresa May suggested, “the DUP made a mistake by accepting there could be regulatory differences between NI and the rest of the UK. He said one of the reasons Boris Johnson got a deal with the European Union was due to the DUP’s move”.

If there is a distinction between the DUP agreeing a regulatory border in the Irish Sea and agreeing to proposals which, if implemented, would almost inevitably lead to a regulatory border in the Irish Sea, it is not much of one.

It was obvious at the time and it is even clearer with the benefit of hindsight that the DUP leadership made a catastrophic mistake in backing the prime minister’s proposals on October 2 2019.

Acceptance rather than denial of this fact might start the process of a much needed rebuilding of confidence as they face into the challenges which lie ahead.

DR, By email

UK paper October 2 2019: https://www.gov.uk/government/publications/uk-proposals-for-a-new-protocol-on-irelandnorthern-ireland

Lord Dodds March 29: The DUP opposed the prime minister’s Brexit deal after he dropped Northern Ireland safeguards

Arlene Foster January 16: We are trying to fix this trade barrier with the rest of the UK, which was created by London

Lord Morrow April 17: The Irish government and EU need to take a more conciliatory approach to help end tensions

Lord Dodds September 6: We need urgent clarity needed from London on its attitude towards EU laws in Northern Ireland

Peter Robinson Sep 17: The party of Edward Carson and James Craig will now just ‘lobby’ against the NI Protocol

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