The Prime Minister’s need to pretend the Protocol was fine when he signed it weakens his international law case

14 Jun

Last night, the Government published its legal position on why, in its view, its decision to proceed with legislation to set aside parts of the Northern Irish Protocol will not breach international law.

There is a throwaway reference to Article 16, which doesn’t matter because the Government is not proposing to trigger Article 16. The crux of the actual case hinges upon something called the “doctrine of necessity”. Here is their definition:

“…the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”

In this case, the essential interest is purportedly the proper functioning of the Belfast Agreement; even partial implementation of the current Protocol has alienated Unionism and jammed the devolved institutions in Northern Ireland.

Certainly, it seems deeply questionable to assert, as the Government does in its above-linked position, that “the peril that has emerged was not inherent in the Protocol’s provisions”.

This is a puzzling assertion, to say the least. In what universe was the Protocol ever unproblematic? One where Unionists simply rolled over for whatever reason and raised no objections?

But the Government has to make it, because Boris Johnson signed the Protocol and most of his MPs backed him in doing so.

That means they can’t make the best, most cogent case against it, which is that it is fundamentally flawed and undermines Northern Ireland’s position in the United Kingdom. Not when the Government is busy fighting David Trimble in court and insisting that yes, it really did override the Act of Union.

So instead we get this position, which seems to amount to the argument that there is nothing wrong with the Protocol in theory, it’s just in practice that everything is on fire. (In this respect, they sound a lot like the old defenders of the Fixed-term Parliaments Act.)

But if the idea that the problems with the Protocol were unforeseeable is not convincing, the argument of exigent circumstances seems more so.

The Loyalist Communities Council has already walked away from the Belfast Agreement altogether. All the major Unionist parties are demanding change. Stormont has fallen over, again.

The Protocol (and the sea border) is putting Ulster’s devolution settlement under enormous pressure.

Hostile commentary seldom concedes this point, because it usually either ignores the existence of Unionists or else refuses to acknowledge their anger as part of any systemic problem.

Nobody reasoning in this spirit is going to concede that a slow-burning crisis rooted in Unionist anger meets whatever the criteria for ‘necessity’ are. That is for their crises, not yours.

But the case for action on the Protocol to protect the overall settlement – which means keeping unionists on side, whether the nationalists and the Alliance Party like it or not – seems pretty solid. Even Tony Blair concedes it.

And if we accept that the Belfast Agreement is one of the most important undertakings of the British State – which in most circumstances we are encouraged to do – then the Government is doing nothing which the Federal Constitutional Court in Germany has not already done in much more explicit terms: setting fundamental constitutional obligations above international legal ones.

But will that matter? Probably not. Because ultimately, given that the relevant players are sovereign actors rather than subjects of a sovereign authority, this is all politics, and power politics at that. One doesn’t need to push most advocates of the Protocol very hard to get arguments that owe more to the Melian Dialogue than any airier principle.

That the Prime Minister is currently in a position to win a contest of strength with Brussels is, at the current moment, not obvious.

The post The Prime Minister’s need to pretend the Protocol was fine when he signed it weakens his international law case first appeared on Conservative Home.

Daniel Hannan: How Sinn Féin’s electoral success makes a United Ireland harder to achieve

11 May

Lord Hannan of Kingsclere is a Conservative peer, writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

The shocking thing is that no one was shocked. Sinn Fein, a movement linked to armed gangsters, has now won (at least in the sense of getting more votes than anyone else) on both sides of the Irish border.

The fact that its victory was predicted does not make it any the less disturbing – quite the reverse, if you think about it. Yet there is no international condemnation.

It’s curious. Victories by, say, Donald Trump or Viktor Orbán drive commentators into finger-wagging rages. When Hamas won the Palestinian election, the US cut off its money. The EU is fining Poland a million euros a day because it dislikes the ruling Law and Justice Party.

Yet the idea of a party with a private army winning office is seen, not least in Brussels, a sign of progress.

It won’t quite do to say that the violence is all in the past. The leaders of the two traditional Dublin parties understand well enough what they are dealing with, which is why they buried a century of differences with one another to keep Sinn Féin out of office when it topped the poll in 2020.

“Sinn Féin is not a normal party”, explained Fine Gael’s Leo Varadkar, pointing to its links with the IRA’s Army Council. Micheál Martin, his Fianna Fáil counterpart, agreed, refusing to treat with SF on grounds that “shadowy figures dictate what happens.”

Mention any of this and you get a revealing reaction from online Shinners. A few rage at the suggestion that theirs is anything other than a fully democratic party. But most undermine their comrades’ indignation by wishing that Margaret Thatcher had been blown up and posting images of IRA gunmen.

Occasionally, the prejudices that are meant to be confined to social media burst out, as when SF canvassers toured County Cavan at the last Irish election blasting “Ooh, ah, up the ’RA!” from their van.

True, the overall election result was not as dramatic as the headlines suggested. Sinn Féin ended up with 27 Assembly seats, the same as it went in with.

What we saw was not a Republican surge but a Unionist fragmentation. The overall Orange/Green balance barely budged. Parties that want to stay in the UK have 37 seats (down three); parties that favour integration with the Irish Republic have 35 (down four).

It is not even the first time that an anti-Union party has won. In 2010, SF attracted fractionally more votes than the DUP, though a quirk of the system gave it fewer seats. Indeed, at the first ever Stormont elections in 1998, the SDLP got more votes than the UUP – though, again, fewer MLAs.

Does SF’s victory bring forward the prospect of the 32-county socialist republic which that party favours? In the short term, at least, it will almost certainly have the opposite effect.

You might think it paradoxical that a win for the Shinners, whose whole shtick is Irish unity, might retard that cause.

But plenty of people in both traditions have qualms about being absorbed into a state run by a party with links to organised crime, a party that can’t quite overcome its dislike of the police, a party with Corbynite economic policies, a party that won’t apologise for murders committed by its supporters (including of Irish Catholic civilians), and a party that still struggles to accept the legitimacy of state institutions in either jurisdiction.

Michelle O’Neill, the SF leader at Stormont, can’t even bring herself to name the territory of which she aspires to be first minister. Nomenclature is sensitive in Northern Ireland. Nationalists don’t like to hear the place described as ‘Ulster’ or ‘the Province’, while Unionists bridle at ‘the north of Ireland’ and ‘the six counties’.’

‘Northern Ireland’, the official name, is broadly seen as neutral. But SF regards even the acknowledgment of legal reality as unacceptable.

Perhaps the party’s biggest problem, though, is its unwillingness to come to terms with the presence of a million Brits in Northern Ireland. Although some of its politicians now refer to “our Unionist brothers and sisters”, they still see them, fundamentally, as misguided Irish Protestants, and won’t countenance the idea of accommodating their Britishness.

This is nothing new. Listen to how Éamon de Valera described his vision of unification as late as 1962:

“If in the north there are people who spiritually want to be English rather than Irish, they can go, and we will see that they get the adequate compensation for their property”.

Republicanism of the SF variety (or the Dev variety) defines unionism as a kind of false consciousness, a bogus identity created in and manipulated from London.

The fact that successive British governments kept trying to push Ulstermen into an accommodation with Dublin – perhaps in the hope that they would serve as a ballast, keeping Ireland within Britain’s orbit, but in an all-Ireland polity none the less – did nothing to shake this belief.

Every time Irish Republicans had to choose between attracting Unionists and emphasising their distance from Britain, they opted for the latter: removing Ireland’s remaining symbolic links with the UK, declaring a republic, leaving the Commonwealth, staying neutral in the war against Hitler, rejecting the Atlantic alliance, and making the Irish language compulsory for certain state functions.

These were legitimate choices for an independent country. But they were hardly likely to appeal to the large minority on the island who saw – and see – themselves as British subjects. Whenever Republicans demanded “Brits out of Ireland”, Unionists felt they were being asked to leave.

Constitutional nationalism by and large accepts that, in a place where there is always going to be a large minority, there must be compromises.

Constitutional unionism recognises the same. Its leaders understand that the Union must rest on the consent of both communities, and that such consent requires a willingness to recognise Irish identity in practical ways, such as offering people Irish citizenship and passports.

But SF does not do compromise. Whereas Unionism recognises that you can be both British and Irish – indeed, unionism might be said to have originated as the idea that to be Irish was also to be British – there is no version of republicanism that is not based, at least on some level, on a rejection of Britishness.

Awareness of this asymmetry makes the idea of an annexation following a vote of 50 per cent plus one disquieting to people in both traditions. It may partly explain why overall support for the Union has remained buoyant despite the shift from a two-to-one ratio of Protestants to Catholics a century ago to roughly even numbers today.

Put bluntly, people who are culturally Irish might back the Union for all sorts of practical reasons – concerns about pension rights, say – but only for as long as they feel their identity is respected.

Now try to imagine a united Ireland that genuinely respected British identity. What might it look like? Perhaps a bit like the Ireland that Parnell and Redmond campaigned for – a self-governing island under the Crown, with close institutional links to Great Britain.

Had the Home Rulers got their way – had any of Gladstone or Asquith’s devolution schemes come to fruition – we might have been spared three monstrous wars: the war of independence, the Irish civil war, and the Troubles.

A united Ireland might have evolved peacefully towards greater sovereignty in the way that, say New Zealand did – albeit probably keeping closer links to Britain in economic and foreign affairs, reflecting its geography.

Now ask yourself this. Do you see any likelihood of Ireland moving in that direction? Can you imagine Sinn Fein taking such a road? That, in a nutshell, is why Northern Ireland isn’t going anywhere in a hurry

The elections and the Protocol. A United Ireland is no nearer, but Northern Ireland is more unstable.

10 May

Every so often, something happens in Northern Ireland which compels mainland commentators who normally pay the Province no attention to venture a take on its politics. This is unfortunate.

Sinn Fein emerging from last week’s Stormont elections as the largest party in the Assembly is just such an occasion, and has given rise to some truly woeful contributions to the discourse. For example, here’s Piers Morgan:

The main thing this tweet tells us is that prominent amongst the people who do not “fully understand the consequences of Sinn Fein’s success” stands Morgan himself.

But his is merely a lamentably high-profile instance of a common mistake, and it’s a mistake which is not only fundamentally wrong but if anything makes the actual situation in Northern Ireland worse than it needs to be.

With Ulster looking set to remain in the headlines for some time – at least until the hot-take flying column gets bored and moves on – let’s take a look at what actually happened and what the possible implications are.

The results

There is no doubt that Sinn Fein emerging as the largest party in Stormont is a significant moment that will provide a real stress-test of the institutions which have intermittently governed (or at least, presided over) Northern Ireland for the past quarter-century.

But in terms of the actual election, the picture is not what one might expect from excitable headlines. The republicans went into the election with 27 seats and came out with… 27 seats.

Meanwhile the SDLP, the smaller party for voters who like their nationalism unconnected to terrorism, lost four seats and returned only eight MLAs.

That’s an overall loss of four for officially nationalist parties and an overall count 35 MLAs.

(People Before Profit, who designate as ‘Other’ but favour merging with the Republic, held their one.)

On the Unionist side, the Democratic Unionists lost three seats, slipping from 28 to 25. The Ulster Unionists lost one to return nine MLAs, the Traditional Unionist Voice kept their one, two Independent Unionists were returned, and one ex-DUP MLA was returned as a third Independent Unionist.

That’s an overall loss of three seats, and a caucus of 38 MLAs. Which, whilst not great, is still bigger.

So why does Sinn Fein get to nominate the First Minister?

Under the original terms of the Belfast Agreement (which is hallowed except when it’s not), they wouldn’t: that privilege went to the largest designation, Unionist or Nationalist.

However, in 2007 the DUP and Sinn Fein conspired to stitch up the Province’s electoral system, and Peter Hain, then the Northern Irish Secretary, allowed them to do it. They did this by changing the rules in the St Andrews Agreement so that the privilege fell to the largest party.

This meant that instead of voters being able to safely choose between different Unionist and Nationalist options without undermining their own team, as it were, it was suddenly imperative to pile in behind the biggest parties to keep the other lot away from the (purely symbolic) post of First Minister. The UUP and SDLP have predictably suffered since.

Will there be a new Executive?

Under the power-sharing provisions laid down in the Belfast Agreement, both sides need to agree to serve for the devolved government to function. This is why Stormont falls over so often.

At present, the DUP have indicated that they are open to nominating a Deputy (in reality, co-) First Minister… but only if the Government delivers real movement on the Protocol. Which the Government has not yet shown much sign of doing.

The Protocol strikes at the heart of the promises underpinning the Belfast Agreement because, in the eyes of most unionists (even those more inclined to ‘make it work’), it has changed Northern Ireland’s constitutional status vis-à-vis the rest of the United Kingdom, not least by overruling the Act of Union, without a referendum.

It’s proper operation would also have the effect of forcibly re-orienting the Province’s economy away from Britain towards Ireland and the European Union, a fact Michael Gove all but conceded in the Commons. It is worth remembering that the current backlash and instability would be much worse had the Government not subsequently acted to unilaterally extend ‘grace periods’ which protect east/west trade.

This has the potential to be a much more dangerous crisis for Stormont than previous ones because this time, the recalcitrants aren’t holding out for something a unwise Secretary of State looking for good photos and cheap headlines (the witless Hain, et al) can simply hand them in return for a quiet life – at least not without controversial legislation.

Without that change, either the DUP backs down or the Executive stays shut.

What happens then?

Nothing much, at first. Westminster does not take its duty to provide order and good government (as opposed to merely peace) to its citizens in Northern Ireland especially seriously, and in recent times has striven very hard to avoid having to govern the place if it can possibly help it, even if no other government is available.

Under changes negotiated during Julian Smith’s stint at the Northern Ireland Office, the previous Executive will simply stagger on for some weeks (although unless the DUP agree to go back into it, it can’t actually do all that much). When that clock eventually runs out, there will be another election.

If that doesn’t change anything, then at some point the Government will have to implement direct rule, whereby the Province is basically administered by the Secretary of State and the NIO. This would require legislation at Westminster to implement.

So does any of this mean a ‘united Ireland’ is imminent?

No.

In fact, suggesting it does both betrays a fundamental misunderstanding of the Belfast Agreement and, if amplified by foghorns as loud as Morgan, actually undermines the proper function of the devolved settlement in Ulster.

First, one of the consequences of the Agreement is that the constitutional status of Northern Ireland no longer hangs on election results. The Secretary of State will only authorise a referendum if they believe there is clear and consistent evidence the nationalists would win. (There is no such evidence as yet, not even close.)

The parties I dub ‘capital-U Unionist’ have not adapted to this reality, with the DUP in particular having lapsed into a stagnant offer aimed at mobilising their base.

Lacking a compelling alternative in the UUP, more and more broadly pro-UK voters have either stayed at home or, more recently, switched in droves to the Alliance Party, which is formally neutral on the constitution but whose electoral strength in the east of Northern Ireland betrays its liberal unionist roots.

As recently as the 2016 election, the Unionist bloc stood at 55 seats (DUP 38, UUP 16, TUV one) versus a Nationalist bloc of 40 (SF 28, SDLP 12). The makeup of the electorate hasn’t changed fundamentally since then, nor is there been a big swing towards support for ending the Union.

What has happened is that Sinn Fein have done a good job of consolidating their hold on the Nationalist vote, whilst the DUP have alienated a lot of Unionist voters. Where have they gone? In 2016 the Alliance returned eight MLAs; last week it was 17.

This is a healthy development. The keep-them-out politics fostered by St Andrews is toxic, and voters need to feel more comfortable switching parties if Northern Ireland is ever to have a better politics. Politicians on both sides also need to be able to work with the other on day-to-day governance issues without worrying that they’re somehow betraying the cause.

Which is why when clueless commentators declare that this result represents a big step towards breaking up the United Kingdom, they are not just wrong but directly abetting the most regressive elements of Northern Irish politics.

So stop it, please.

Henry Hill: As voters go to the polls in Northern Ireland, the DUP is fighting for second

5 May

As voters go to the polls in Northern Ireland today, the last round of projections makes grim reading for the capital-U unionist parties.

The News Letter reports that Sinn Fein is on 26.6 per cent, according to a University of Liverpool survey, with the Democratic Unionists languishing neck-and-neck with the Alliance Party on 18 per cent.

If borne out, this would not only see the republicans comfortably the largest party at Stormont – and thus entitled to nominate the symbolically-important post of First Minister – but could see the border-neutral Alliance as the second-largest party.

This latter point has prompted some to speculate that Naomi Long could be nominated as ‘deputy’ (in reality co-) First Minister. But this is not the case: the right to nominate falls to the largest party in the second largest designation, and there are not many ‘Other’ MLAs outwith the APNI itself.

Indeed, it could yet be that the Unionists remain the largest designation overall, as their vote is divided between three significant parties (the DUP, Ulster Unionists, and Traditional Unionist Voice) versus just two (Sinn Fein and the SDLP) on the nationalist side.

Should this happen, it will see all of unionism paying the price for the DUP/Sinn Fein stitch up of Stormont which New Labour signed off on in 2007. This saw the right to nominate the FM/DFM transferred from the largest and second-largest designation (thus allowing voters to move between parties) to the largest party in each designation, encouraging voters to pile in behind the biggest to keep the other lot out.

This comes amidst the revelation that Sinn Fein has been reaching out to groups linked with dissident republicans in its efforts to secure a border poll. The party apparently wrote to Saoradh, which is allegedly connected to the New IRA – the group linked to the murder in 2019 of the journalist Lyra McKee.

Both the UUP and the TUV meanwhile will be hoping to benefit from a major DUP setback, with the latter’s leader, Jim Allister, apparently hopeful that he won’t be his party’s only MLA in the next assembly.

These polls will also be causing as much discomfort in Whitehall as in DUP headquarters; whilst the working relationship between the Conservatives and the DUP is not what it once was, the Northern Irish Office know that the outcome most likely to lead to the straightforward creation of a new executive is the latter holding on to the top spot and their claim to the First Minister’s fiction.

If not, it could be a long few months for Brandon Lewis as Northern Ireland lurches through the extensive procedures it has for when its government isn’t functioning. These include weeks of delay whilst the previous executive holds on, then another election, and in the last resort direct rule – although this would require emergency legislation at Westminster.

A good night for Labour?

On the mainland, the situation in the local elections seems positive for Labour in both Scotland and Wales. According to Wales Online, the party is on track to pick up four councils in Wales today.

It doesn’t seem to be bad news for the Conservatives though, who are reportedly on track to hold on to the only council they have under overall control (Monmouthshire) and potentially retake control in Vale of Glamorgan too. (We covered in a previous column how the Party is running a record number of candidates.)

Plaid Cymru is predicted to have a bad night, losing 42 seats and control of Carmarthenshire council, where it governs with the help of independents.

In Scotland meanwhile, Labour look set to retake second place as the popularity of senior Conservatives “plummets” in the take of Partygate, the Scotsman reports. Their poll puts the Tories on 18 per cent, with Labour comfortably ahead on 25 per cent.

One expert interviewed by the Times suggests that this will not necessarily lead to many councils changing hands, but will allow Labour to take their claim to being once against Scotland’s second political force.

Meanwhile Douglas Ross seems to have run into difficulty over whether or not the British Government should release its legal advice on the question of another referendum on independence. This comes after the Scottish Government recently lost a transparency case over its own advice, as mentioned in last week’s column.

He has also stuck to his new, conciliatory line on Boris Johnson, insisting the Prime Minister is “fit for office”.

Unfortunately, despite the litany of failures we looked at last week, Scottish politics remains polarised around the constitutional question and the SNP look set to take about 45 per cent of the vote – their losing share in 2014.

The SNP bad news section

A lot to cover with the elections this week so we’ll do a whistle-stop tour: SNP MP apologises after breaking booze ban on ScotRail train; Nichola Sturgeon blames the war in Ukraine for the census fiasco (but insists it won’t delay independence because priorities); she refuses to apologise over the ferry scandal…

*breathe in*

…the Financial Reporting Council announced an investigation into an accountancy firm linked to a steelworks which got a potentially unlawful cash guarantee from the Scottish Government; and an ex-SNP MP accused of defrauding a separatist group of £25,000 has told a court she didn’t keep her receipts (which seems to be a common bad habit amongst the Nationalists).

The Northern Irish legacy legislation. There will be no amnesty. But will there be a statute of limitations?

4 May

Last year, we wrote about how and why Conservative MPs were putting pressure on the Northern Irish Office to expand protections for ex-servicemen to cover veterans of the conflict in Ulster.

This campaign has not gone away. In December, Mark Francois called on Brandon Lewis to resign over the Government’s failure to bring forward legislation to end prosecutions; just last month protesters ‘blockaded’ the NIO because several former soldiers are facing fresh prosecutions with no new evidence.

Yet the weight may finally be over: early in April the Secretary of State indicated that there would be developments “within weeks”, and the Times reported that “the British government is believed to be close to finalising legislative proposals on so-called legacy killings”. Meanwhile, Leo Docherty told the Daily Telegraph that:

“I’m pleased to say, we expect from the Northern Ireland Office a bill that will give closure to veterans of (Operation) Banner, of whom there are some 300,000. We expect this bill to give closure with honour and finality and I expect that to come forward very soon.”

What is not yet clear is what form it will take. A straightforward amnesty is deeply unpopular on all sides in Northern Ireland.

There is also anger amongst unionists that existing legacy structures are perceived to disproportionately target state security personnel whilst former terrorists enjoy de facto amnesties. We reported last month that Lewis is planning new legislation that will make it clear that New Labour’s controversial ‘comfort letters’ scheme has no basis in law.

He offered an indication as to his line of thought in this report from the Derry Journal:

“When you move through a process that isn’t driven by a prosecution but which is driven by an investigation to get to the truth on a balance of probabilities like the coronial courts then you are seeing people able to get to the truth and to get an understanding”.

Lewis in the same piece emphasises that a statute of limitations does not mean that historical investigations will cease:

“One of the things I think that gets slightly misread in terms of the Command Paper we published last summer is that, yes, it does outline a statute of limitations as a sort of foundation to develop a wider package….I need to be really clear about this – we will continue investigations.”

He specifically references the inquiry into the Ballymurphy massacre, and how difficult it was to get “some recognition of the truth and understanding of what happened” in that case. In the end, the judge-led inquiry took evidence from over 150 witnesses, including “more than 60 former soldiers”, according to the BBC.

Taken together, this suggests the Government may be planning an approach which prioritises ‘truth and understanding’ over increasingly hail-Mary shots at securing criminal justice.

After all, as the Secretary of State has pointed out, nature sets its own statute of limitations: time passes, mortals age, and many of those involved may not be with us for too much longer. Lifting the threat of prosecution may encourage people to engage with ongoing investigations and ensure that victims and their families get at least the truth, if not justice.

Whether or not this will make unionists or nationalists happy is another question.

But it perhaps ought not to be the decisive one. This may be yet another area where a toxic political dynamic suits many of the local players even as it fails to serve the long-term interests of Northern Ireland as a whole. As the author Brian Rowan said of amnesty proposals:

“If we don’t go there, then we aren’t going to have a legacy process and with the wars over, we’re going to spend the next 30 years fighting the peace”.

For so long as it remains part of the United Kingdom, the Government is ultimately responsible for ensuring that Ulster receives not only peace, but order and good government. It cannot content itself with being a sort of constitutional child-minder. If Lewis thinks his proposals (whatever their final shape) are in the best interests of the Province, he should enact them.

Henry Hill: Sturgeon can’t keep Great British Railways completely out of Scotland

10 Mar

How far can Great British Railways reach in Scotland?

This week the Daily Telegraph reports that Nichola Sturgeon is sidelining Great British Railways, the new national railway brand unveiled by Grant Shapps. Apparently Nationalist ministers, who are preparing to nationalise Scotland’s passenger rail franchise, scorned the plan at a conference in Glasgow.

Yet it is in some ways a strange story. The Department for Transport knows full well that control of ScotRail is devolved; there was never any hope that the SNP would sign up to a pan-GB initiative. This is, after all, the government that only paused efforts to abolish the British Transport Police in Scotland after mass resignations by officers.

But that doesn’t mean that GBR won’t have a presence north of the border. For one thing, it will operate several cross-border services – Shapps should make sure these show GBR’s best face, the better to contrast with Nationalist-run ScotRail. It will also apparently run ticketing and have a visible presence at stations, as this aspect of the old British Rail empire was never broken up.

Unionists clash as Stormont passes controversial Education Bill

The two main unionist parties in Northern Ireland are fighting after they failed to block the passage of new legislation which will oblige the Executive to support integrated schools.

According to the News Letter, both the Ulster Unionists and the Democratic Unionists were concerned that it would see such institutions prioritised over existing ‘controlled’ and ‘maintained’ schools.

However, after the Assembly passed the Bill, the UUP refused to back a DUP-led ‘petition of concern’. This is a mechanism, drawn up as part of power sharing, that allows one side at Stormont to veto legislation. Doug Beattie, the UUP leader, said that the bid was an “abuse” of the system.

Baillie says Labour were ‘wrong’ to work with Tories in pro-UK campaign

Scottish Labour might sport a new logo, but they are still having the same rows. This week, Jackie Baillie told their conference that she thinks it was “wrong” for their party to join forces with the Conservatives during the 2014 referendum on Scottish independence.

The Courier reports her as saying that Labour should be sure to run “distinctive” campaigns in the future, even if they shared with the Tories the ultimate objective of keeping the United Kingdom together.

Naturally the Conservatives have hit back, pointing out that Labour are in coalition with the SNP on several councils and arguing that this is yet more evidence (although Sir Keir Starmer’s ‘radical federalism’ should be sufficient) of their weakness on the Union. By contrast, nine Aberdeen councillors who went into coalition with the Tories were suspended from the party.

This comes as the SNP try to pressure Anas Sarwar into dropping one of his candidates, a former leader of the Orange Order in Scotland. If he does, that will only accelerate the movement of a section of working-class pro-UK voters towards the Conservatives – a shift which already saw the Tories come within a few hundred votes of winning Lanark and Hamilton East in 2017.

A generous idea of the British nation is needed in order to keep the UK together

5 Feb

The Idea of the Union: Great Britain and Northern Ireland – Realities and Challenges edited by John Wilson Foster and William Beattie Smith

The other evening I was having dinner in London with three liberals and when the subject of Northern Ireland happened to come up, all of them said that of course within the near future, Irish unification would take place.

I said this was not my opinion, which surprised them. They wondered how I could be so oblivious to the way the world is going; so at odds with the progressive consensus.

And I was unable to think, on the spur of the moment, of any arguments for the continued Union of Great Britain and Northern Ireland which might have the slightest impact on my companions.

In his introduction to this collection of essays, John Wilson Foster laments that my inarticulacy is widely shared:

“What swells unionist alarm is the absence of influential support for the pro-Union cause from anywhere outside the Northern Irish pro-Union political parties. Irish republicanism (by which I mean nationalism that actively seeks a united separate Ireland) suffers no such political privation; it enjoys assent and promotion around the world even from those who know nothing about Ireland north or south…

“Reviewing a Sean O’Casey autobiography in 1945, George Orwell asked: ‘Why is it that the worst extremes of jingoism and racialism have to be tolerated when they come from an Irishman?’ His answer was ‘England’s bad conscience… It is difficult to object to Irish nationalism without seeming to condone centuries of English tyranny and exploitation.’ Northern Irish unionism has unjustifiably inherited this dilemma.”

Hence the production of this admirable collection of essays. Its 21 authors throw much light on various aspects of the problem, but less on how to solve it.

Indeed, an earlier version of the collection was published in 1995, without, so far as I know, doing more than to make existing supporters of the Union better informed.

As Foster remarks, within Northern Ireland itself, landowners, and senior figures in business and the professions, who used to make the case for the Union, have generally fallen silent:

“For some decades, public defence of the Union has cascaded down the social scale. It has now fallen through classless academia and come to rest mainly with loyalists (i.e. working-class unionists), whose reflex is to assert rather than articulate the Union. And they are targets for those who wish to denigrate the Union and dismiss the culture of unionism as all bonfires and marching bands.”

The London media generally feels “no warmth or enthusiasm” for the Union. The cultural riches of Ireland, wonderful poets from Yeats to Heaney, add lustre to Irish nationalism, whatever reservations those writers may actually have expressed.

The cultural riches of the British isles don’t count in the same way, are indeed discounted. Some Remainers wanted quite consciously to reject Britishness and to declare their European identity, and felt bereaved when they were told they could not remain in the European Union.

In vain Boris Johnson pointed out to them that it was still feasible for them to learn French and German if they wish – two languages of which the teaching had actually declined in our schools while we were in the EU.

Nationalism of every kind includes a strange process by which the bogus comes to be seen as genuine. The House of Windsor has been brilliant at doing this. We observe with pride an immaculate ceremonial which satisfies our craving for ancient splendour, much of which was invented between 1901 and 1910 under the joint patronage of Edward VII and the Daily Mail, founded in 1896 and eager for royal pageantry with which to fill its pages and sell newspapers.

Arthur Aughey remarks in his essay, The Idea of the Union, first printed in the 1995 version of this book, that it was at about the same time that the Union commanded close attention:

“The question of the Union was one which for two decades either side of the turn of the century concentrated the mind of the entire British Establishment and encapsulated the preoccupations of an empire. It brought forth a vast literature on the value of the Union as a political idea. Like conservatives in 1789, unionists in both Great Britain and Ireland had been ‘alarmed into reflection’. They were forced to make intelligible that which hitherto had been instinctive and natural.”

When the convulsions of that time were over, the Ulster Unionists found they had both won and lost:

“They had been able to prevent their absorption into a narrow and authoritarian Catholic, nationalist state. What they had not been able to assert convincingly, and what they had been unable to make the British Government in London fully acknowledge, was their full and unequivocal membership of the United Kingdom. After 1920 Unionists were cast back upon their own resources. They depended on their capacities and strength of will alone to ensure that Northern Ireland remained a part of the Union. What ensued was a dialectic of stubborn self-righteousness within Northern Ireland between Unionist and Nationalist.”

He wants to get beyond this self-righteous Unionism to one which is founded on equal citizenship:

“The idea of the Union is the willing community of citizens united not by creed, colour or ethnicity but by a recognition of the authority of the Union. Its relevant concept is citizenship and not nation.”

Aughey asserts at one point that there is “no such thing as the British nation”, and there are “only British citizens who happen to be English, Scottish, Welsh, Irish and some who would be none of these”.

This seems to me to be plain wrong. There is a British nation, comprising not only the four home nations, but people from all over the world who have chosen to live here, and to become British citizens.

As Henry Hill remarks in his contribution to this book, entitled The Re-emergence of Devosceptic Unionism,

“an underlying sense of nationhood is the essential cement of any long-term political union – especially if it cannot avail itself of near-universal elite buy-in as the EU can.”

Hill challenges, as ConHome readers will know, the fatuous assumption that the only way to deal with any failure of devolved government in Scotland, Wales and Northern Ireland is to devolve yet more powers.

Brexit is the beginning not the end of making the positive case for the British nation. I have sometimes done this in conversation about the Union with Scotland, contending that if it were to end, both England and Scotland would be diminished, becoming narrower and less generous places.

In Northern Ireland, as various contributors to this volume remark, there are almost certainly many people who are content to remain part of the United Kingdom, but have no words in which to express that preference.

A generous Unionism, of a kind which can be commended at dinner even to London liberals, requires a generous understanding of Britishness, and that in turn cannot be the creation of politicians alone, but must depend, as any nation does, on poets, novelists, historians and essayists.

The DUP’s threat to suspend border inspections further turns up the pressure on Truss

28 Jan

Earlier this month, we wrote about how Boris Johnson’s decision to put the negotiations over Northern Ireland in the hands of Liz Truss might change the dynamic of the talks.

As a serious contender for the leadership, and thus keeping an inevitable eye on the selectorate therefore, the Foreign Secretary has more incentive than ever did Lord Frost to take a muscular line with the EU, perhaps up to and including actually triggering Article 16.

Have we now detected the first tremors of this earthquake? Media reports yesterday suggest that Truss has signalled that Westminster will not use its authority to overrule Democratic Unionist ministers if they follow through on their latest threat to suspend checks at the Irish Sea border, saying it is “a matter for the Executive”.

Whether or not this line actually holds is a separate question: commentators sceptical of the DUP’s faith in the Conservatives have pointed out that London has taken this line before, only to fold later.

But one can see how it might suit Truss to have Edwin Poots playing bad cop as she leads the talks with Maroš Šefčovič and makes upbeat noises about a deal. And the Government has played fast and loose with the Protocol before, when it repeatedly extended ‘grace periods’ in order to avoid disruption of intra-UK trade.

That doesn’t mean that suspending checks was her idea. The DUP face a very difficult election in a few months, and need to re-consolidate their position as the dominant party for Unionist voters if they’re to have any chance of edging out Sinn Féin and holding on to the merely titular, but symbolically charged, post of First Minister.

As a result, this would probably have happened regardless of who the Prime Minister had tasked with unpicking his Ulster knot.

Yet that same political ticking clock is what makes Poots’ move so high-stakes. Once he has suspended checks, it will be extremely difficult for he and his colleagues to climb down before May without offering an open goal to the Traditional Unionist Voice (TUV), which is just waiting to do to the DUP what the DUP did to the Ulster Unionists in the Noughties.

The pressure will therefore be on for Truss and Šefčovič to come to acceptable terms. Should they fail (and as I noted in a recent column, Whitehall sources are pessimistic) the question becomes what happens when the February deadline, which seems to have been unofficially set in London and has been made explicit by the DUP, comes and goes?

Which brings us back, once again, to Article 16. And it’s here that the phony war over the leadership might be making itself felt.

At the time Truss was appointed, I suggested that Johnson might have despatched her to Northern Ireland, the historic graveyard of ministerial ambitions, in order to undermine her leadership prospects:

“If Liz Truss has seen Dune, she will likely have a firm grasp of the spirit in which Boris Johnson has charged her with taking over Lord Frost’s negotiations with the European Union. The Padishah Emperor of the Known Universe sent his enemies to govern the titular planet in order to wipe them out. Prime ministers are not above sending colleagues to Northern Ireland with similar intentions.”

But this morning’s papers suggest that he has chosen instead to wield the Ulster issue against another target: Rishi Sunak.

According to the Daily Telegraph, the Chancellor has been accused by ‘allies of the Prime Minister’ of blocking plans to trigger Article 16, alleging that he is a “nominal Brexiteer”. The line is echoed by the Daily Express, which reports that Sunak wants to avoid “upsetting [the] EU”.

Johnson being Johnson, we have no real way of knowing if this is a real row, or he is simply trying to use an attack on his most obvious potential challenger to cover the exact same retreat from Article 16 he made last year.

But if Truss can’t strike a deal by February, and subsequent failure to trigger it signals to the EU that they have exhausted London’s political will on the question, there seems no way to avoid the Sea Border dominating the Stormont elections, with toxic and potentially fatal implications for Northern Ireland’s fragile constitutional settlement.

Ultimately there are only three ways out of the impasse: a land border which will offend nationalists, a sea border which offends unionists, or pretending there is no border at all, which offends the EU (although given that the grace periods produced no noticeable market distortions, would not actually hurt it). If Brussels meant what it said about putting peace in Ulster first and foremost, it would bite the bullet on option three. That still seems a long shot from here.

Would the DUP really bring down Stormont over the Northern Irish Protocol?

2 Jan

This morning’s papers report that Sir Geoffrey Donaldson, the leader of the Democratic Unionist Party, has reiterated his threat to collapse devolution in Northern Ireland. The MP urged Liz Truss, who has taken over negotiations on the Protocol, to set a firm deadline for triggering Article 16 if she hasn’t made sufficient progress.

According to the Sunday Telegraph, Whitehall views this intervention ‘unhelpful’; they have apparently been trying to avoid hard deadlines in order to give negotiators the space to work.

But one can understand why Donaldson might wish to force matters. As I noted when Lord Frost resigned, recent months have seen a noticeable softening of London’s negotiating position. Serious talk of triggering Article 16 in November came to nothing, and it isn’t yet entirely clear why. Dominic Cummings has suggested that there is simply insufficient Prime Ministerial will to see such aggressive tactics through (but then, he would).

Donaldson isn’t the only one keen to make progress – or at least, make the issue go away. Last week the Irish Government warned that the upcoming Stormont elections should not become a ‘referendum’ on the Protocol. Apparently London and Dublin are also treating February as an “informal cut-off point” for negotiations.

It remains an open question whether the DUP will actually collapse Stormont. They are an Assembly-based party; it furnishes them with jobs, titles, salaries and status. Coherent, ‘Carsonite’ integrationist unionism is not their game, and there are plenty of commentators who are deeply sceptical that there is any truth to Donaldson’s posturing against the institutions.

Moreover, there would be a big difference between this collapse and those precipitated by Sinn Fein, who hold the institutions to ransom only for things that Westminster can provide unilaterally, such as more powers or cash. Permanent changes to the Protocol are not in the Secretary of State’s gift; the DUP would therefore risk ending up with a choice of admitting a high-profile defeat to go back in without concessions or seeing Stormont shuttered for much longer than they might like.

One factor which does perhaps make it more likely than previously is that Donaldson is an MP, rather than an MLA. He would therefore not lose his platform in the event that Stormont fell over yet again, and the shift in focus towards Westminster (where Sinn Fein don’t sit) might do him some favours.

But even if he doesn’t follow through on his threats, absent some real changes Donaldson isn’t going to drop the subject for the elections. Hostility to the Protocol is one thing that unites most of the current Unionist vote (even if it is less important to the wider potential unionist vote).

And the DUP need such a unifying theme. To their right, the Traditional Unionist Voice will pounce on any softening of position, and try to do to the DUP what the DUP did to the Ulster Unionists in the Noughties.

Meanwhile their left flank is threatened by Doug Beattie’s UUP. A campaign centred on a constitutional question of existential importance to unionists would seem to favour the DUP’s efforts to maintain their position as the dominant Unionist party, rather than giving Beattie the space to try to broaden the campaign out to social issues and the need for an overall refresh of pro-Union leadership. (The other factor doing this, of course, is the threat of a Sinn Fein first minister.)

A Protocol-focused campaign gives the UUP leader the choice of either taking a similarly tough stance as Donaldson, in which case the larger party will likely eclipse him if voters are merely looking for the most effective anti-Protocol vote, or taking a softer line which the DUP will hammer him for.

The new Ulster Unionist leader. Soldier, statesman… saviour of the Union?

31 Dec

Is Doug Beattie, the new leader of the Ulster Unionist Party, the ‘man who will save the Union’? This is the argument Ruth Davidson has made in an end-of-year essay for UnHerd.

It’s worth reading in full, but the bare bones of her case are as follows: Northern Ireland may well leave the Union in a decade or so; if it did, it would undermine the Unionist position in Scotland; but Beattie and his new approach to pro-Union politics will stave off these twin disasters. But is this the case?

There is certainly a lot to recommend Beattie’s approach. For all that it has been represented by three parties in recent years, the narrowness of the electoral offer from what I call ‘capital-U Unionism’ in Ulster has long been a serious weakness. Whilst many pro-UK voters there are right-wing and socially conservative, many others – and crucially, many more potential pro-UK voters – are not.

The UUP will never be able to fix this on their own. The Province still awaits the advent of the sort of decent, left-wing unionist party that Labour’s refusal to organise denies them. (The tiny Progressive Unionist Party has paramilitary connections.)

But a more liberal approach to social issues does open up new political territory, perhaps especially with the sort of soft unionist voter who has been alienated by traditional Unionism but might be concerned about the development of the Alliance Party from a broadly ‘liberal unionist’ outlook to a constitutionally neutral one.

Likewise, the recognition of how important it is to create space for ‘de facto unionists’ amongst Northern Ireland’s Catholic community to actually vote for a pro-UK party is very welcome. Polling regularly shows a substantial minority of Catholics support remaining in the United Kingdom; the fraction of those voters actually putting their cross next to Stormont or Westminster candidates who share that position is miniscule.

However, Beattie has a very difficult job there. Unlike a brand-new pro-UK party, such as the ill-fated NI21 promised to be, the Ulster Unionists are an old party with a long history. They were the ‘Official Unionists’ who ran the Province as an effective one-party state during the era of the old Parliament of Northern Ireland. Capital-U Unionist politicians, including even those in the DUP, have talked about the importance of wooing Catholic voters for some time. Whether such talk can translate into effective action remains to be seen.

Nor is this the only front on which the new UUP leader is fighting an uphill battle. It is also a fact that despite the DUP’s recent political woes, the current Stormont system is stacked in their favour. This is because New Labour, as part of the dishonourable tradition of abdicating Westminster’s ultimate responsibility for governance in Ulster in favour of buying off the local parties, allowed the DUP and Sinn Fein to re-write the way Stormont works.

Under the terms of the St Andrews Agreement, set in 2007, it is no longer the largest bloc (Unionist or Nationalist) of MLAs that nominate the First Minister, but the largest party. Which means that even if Beattie’s approach expanded the overall number of pro-UK legislators, if it dragged the DUP behind Sinn Fein it would lead to a high-profile, if largely symbolic, setback for Unionism. Sir Jeffrey Donaldson’s party will hammer this point home during the elections.

(We might also wonder, thinking longer-term, if Beattie’s long-overdue overhaul of Unionism will extend to rebuilding its links to mainland, and thus to national, politics. If he succeeds in returning MPs to Westminster, will they sit impotently with the ‘Others’ as their predecessors have done, with only brief exception, since the 1970s? Will their be some effort to rebuild the historic relationship with the Conservatives?)

So far, so pessimistic. But there is one happier ground on which events might not play out according to Davidson’s narrative: the Union may simply not be under the imminent threat she seems to suppose. As I pointed out in a recent piece, the evidence from Lord Ashcroft’s polling is not as grim as it might appear. People anticipate a ‘United Ireland’ whilst painting an overwhelmingly negative portrait of what it would actually entail in terms of jobs, welfare, and public spending. And despite the upheaval of the past few years, there was even a swing towards the UK since his previous poll.

Those results, therefore, seem to speak more to nationalism’s skill at creating a sense of historic inevitability – see also the continual efforts to get unionists to ‘engage’ in talks on joining the Republic – than to make a strong, practical case against the Union. It may therefore be that the burden resting on Beattie’s shoulders is not quite so heavy has his supporters think.