Sam McBride: Read the small print – the Irish Sea border may be impossible to remove, even if MLAs vote it down

Looming seemingly in the distance, but closer than it appears, is a moment on which great constitutional hopes rest but which may be a mirage.

Saturday, 30th January 2021, 8:56 am
The Irish Sea border, seen here at the entrance to Larne Lough, is unlikely to be removed any time soon – and maybe not even if unionists win a key Assembly vote. Photo: Charles McQuillan/Getty

For that reason, it is a potentially perilous moment, and all the more dangerous for this government’s profound dishonesty with the people of Northern Ireland about what it has done – and its refusal to be clear about what it might yet do.

For the next four years, one strategic debate is likely to dominate Northern Ireland politics – not the question of a border poll, but whether the Irish Sea border should be kept in place.

The Sunday Times’ front page story last weekend drew national attention to both Scotland and Northern Ireland’s fragile positions within the Union. In Northern Ireland over recent years there has been both increased support for holding a referendum on Irish unity and increased support for Irish unity itself.

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But on closer inspection the poll was less dramatic than its presentation suggested. The polling company, Lucid Talk, has consistently found far higher levels of support for Irish unity than other polls and academic surveys.

Marcus Leroux, formerly of The Times’ business desk, recently highlighted how the company’s sample is much more politicised than the population – a problem in judging the outcome of a referendum on radical change where people who have never voted before will turn out

But even setting aside questions about how accurately the poll reflects public opinion, this poll shows a decline in support for Irish unity – now 42% –from a Lucid Talk poll a year ago.  The fact that a majority of those polled supported the holding of a border poll can therefore only be explained, as Lord Bew observed, by a significant minority of unionists wanting a plebiscite on the basis of their confidence that their side would win.

However, while that debate is almost certain to intensify over coming years, a more immediate issue is likely to have a greater electoral impact. The Northern Ireland Protocol – the UK-EU agreement which created an Irish Sea border on January 1 – was not voted on by the Assembly prior to its implementation.

However, in a concession both to unionists and some Tory MPs who felt queasy about an internal UK trade border being created against the wishes of Northern Ireland, Boris Johnson and the EU agreed that the Assembly would retrospectively get to vote on the deal.

That vote will come at the end of 2024 – a point which seems far off until one realises that it is closer to the present day than we are to the 2016 EU referendum.

The great hope of the unionist parties is that they may be able to use that mechanism to overturn the protocol – even if only after four years in which trade between GB and NI will have been so disrupted that there are likely to be lasting changes to trade patterns irrespective of what happens then.

However, there has been surprisingly little scrutiny of what will happen after that vote .

The procedure for holding the vote was laid down in prescriptively clear detail six weeks ago by an amendment to the Northern Ireland Act 1998. In simple terms, the Secretary of State must write to the First and deputy First Ministers on October 31, 2024, asking them to bring a motion to the Assembly within a month to let MLAs vote on whether to continue with the protocol.

If they fail to do so, then any MLA can do so. If that does not happen, then the Speaker must table the motion, meaning that the vote will happen in either November or December 2024 – less than four years from now. A second mechanism means that either unionism or nationalism collapsing Stormont will not prevent the vote being held.

Crucially, the vote will not require parallel consent – that is, a majority of unionists and a majority of nationalists having to agree for anything to happen, as is standard for controversial votes at Stormont.

The government says that is because the issue relates to international relations, which is not the responsibility of Stormont. But if that was the whole story, Stormont would have no say at all.

Almost certainly the decision not to allow a cross-community vote was calculated to remove the certain deployment of the unionist veto, which would after just four years have strangled the deal.

Nevertheless, even holding the vote on the basis of a simple majority represents a threat to the government and to the EU if they want the status quo to endure.

Unionism has not had an outright Stormont majority since 2017 and is currently six seats short of being in a position to overturn the protocol. Even some DUP members privately lament how leaderless unionism has been under Arlene Foster and morale among unionist politicians and voters is low.

Some unionist psychologists are privately sceptical about whether unionism therefore has any real prospect of securing a Stormont majority in next year’s election.

However, the scale of the Irish Sea border has the potential to become an unparalleled rallying point – not just for passionate unionists, but for those who care little for the flag but do care that they can no longer order seed from GB, enjoy the same choice of products on supermarket shelves, or take their dog on holiday to Britain without a bureaucratic insistence that the animal has a rabies injection which it does not need.

It is possible that if the new border becomes deeply unpopular across society then even Alliance will come under pressure to end its current support for the arrangements.

However, while the Northern Ireland Act is precise about how the vote should be held, it is silent as to what will happen if unionism does manage to vote down the protocol.

The desire to avoid a physical border at the Irish border means that the EU and the UK would be back to square one.

Article 18 of the protocol provides more detail here, saying that if the Assembly rejects the Irish Sea border then the parts of the protocol which created that border would last for a further two years from that point – until the end of 2026 – before coming to an end.

Rather than that being the end of the Irish Sea border as some unionists appear to believe, in such a case the UK-EU Joint Committee will make “recommendations...on the necessary measures”. It may “seek an opinion” from Stormont, but can ignore what MLAs want.

That leaves open the possibility of the Lisbon Treaty situation being reenacted – but, unlike Ireland which at least got a democratic say on small changes to a document it had rejected, this time there may not be any second vote at all.

I asked the NIO if the government could set out what would happen if the protocol is voted down, and give a categorical assurance that it will not reimpose a tweaked version without prior democratic consent in Northern Ireland. Tellingly, the answer gave no such assurance.

Instead, the NIO said that the requirement for Stormont’s consent for the protocol “was intrinsic to its acceptance by this government” and that “the UK Government remains committed to that principle”.

Few unionists have yet realised this looming issue. The 2024 vote has been sold to them by the government as genuine “democratic consent” for the new trade frontier.

In a week where the police have warned about growing loyalist unrest and at a time when unionism lacks a competent and charismatic leader to effectively channel anger into political action, any self-satisfied manoeuvring by ministers or civil servants is potentially dangerous if it appears to be underhand.

The blunt truth for unionists is that the Irish Sea border which Brexit has led to may never be removed. Even if voted down, it may simply be reincarnated with minor alterations.

There is a long history of supposedly temporary fixes to difficult problems long outliving their authors.

The current land border when introduced in 1921 was viewed by the government as being temporary. This year it marks its centenary.

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