Dan Boucher: DUP policy is in effect one of union with the Republic of Ireland's economy

Some might suggest that this critique is unfair. The DUP’s efforts have taken Northern Ireland from a place where the impact of the Irish Sea border would have been economically catastrophic to a place where, because of the Green Lane (now called the UK Internal Market System) the border is less of a problem for some goods than would have otherwise been the case. However, and quite apart from the fact that this does not deal with the difficulty that 1.9 million people have been deprived of the right to stand for election to make the laws to which they are subject in 300 areas, there are two other problems with this argument.

In the first instance, the greatest protection for the union against the protocol came from within itself. The protocol was, as Rishi Sunak rightly pointed out when offering the EU the lifeline of the Windsor Framework, completely unworkable. Had it been implemented on 1 January 2021, or at any other point, Northern Ireland supply chains would have collapsed within 48 hours. Had things been allowed to run their course, the protocol would have drowned in its own absurdity because the political crisis would have invalidated the project within less than a week. To the extent that Safeguarding the Union is the result of DUP lobbying that sought concessions, it has helped save the protocol as the Windsor Framework.

In the second instance, the development of the Windsor Framework, upheld by Safeguarding the Union, was only possible because of the decision of the DUP not to apply the leverage at its disposal to press for the alternative solution that avoided a hard border, partly disenfranchising the people of Northern Ireland and disrespecting the territorial integrity of the UK, namely mutual enforcement. In choosing to pass on mutual enforcement, the DUP, more than ever, effectively acquiesced in helping the UK government save the protocol from self-destruction.

Mutual enforcement was initially developed from within the EU by Sir Jonathan Faull, Prof Joseph H.H. Weiler and Prof Daniel Sarmiento as a way of avoiding a hard NI-RoI border by requiring that the UK used its own laws to mandate that businesses constructing goods for RoI, did so to RoI standards, while the RoI used its own laws to require businesses constructing things for NI to do so to UK standards. It was noticeable that to begin with the EU seemed interested, the Financial Times described it as ‘the offer that no one can refuse’ and when the EU changed its mind Prof Weiler made it clear that he and his colleagues were by no means persuaded by the EU’s objections. Indeed, he presciently questioned the viability of a solution that rejected mutual enforcement pointing out that the consequence was ‘however disguised, a customs frontier within the UK. But does anyone believe that is a stable solution?’

In mid-February 2023, UK lawyers troubled about the injustice of the protocol threw the DUP the lifeline of mutual enforcement, but this was rejected as ‘messy’, no doubt in favour of the Windsor Framework which would be announced the following week. Another lifeline was then thrown in June by which time it was clear that the Windsor Framework had neither removed the Irish Sea border nor re-enfranchised the people of Northern Ireland.

A 56 page Centre for Brexit Policy report was produced for the DUP under the lead authorship of Barnabus Reynolds (with input from others including Sammy Wilson), setting out mutual enforcement as the solution to the Protocol/Windsor Framework challenge. It was agreed that the DUP leadership would identify fully with it, demonstrating this through the provision of a supportive foreword but then, to the great frustration of the authors, they suddenly withdrew. They were eventually persuaded to honour their commitment but, strangely, would not go beyond welcoming the publication as an interesting contribution to the debate clearly of no immediate importance on account of both the foreword and subsequent interviews repeatedly kicking it into the long grass of interesting ‘longer-term’ solutions.

What the foreword should have said, and what the DUP should have said repeatedly and should say now repeatedly is:

‘We call on the government to point out to the EU that while they may prefer the Windsor Framework, and it is consequently convenient for them to pretend that no other solution exists, that such an alternative solution does exist, mutual enforcement, and that given that it provides a means of avoiding a hard border while not disenfranchising 1.9 million people and disrespecting the territorial integrity of the United Kingdom, it would be shameful and unthinkable for the EU and the UK government to continue to insist on the imposition of the Windsor Framework that commits both these offences.’

Instead, what the foreword actually said, sounding like it had been drafted by the great Sir Humphrey himself, was: ‘… we have been clear throughout that Mutual Enforcement is a concept worthy of serious and sustained consideration in terms of delivering a longer-term solution. …In the longer term, Mutual Enforcement would sustainably address the potential problems caused by the imposition of regulations by an entirely separate regulatory regime and respect our constitutional position as part of the UK.’

Instead of fighting for a solution to prevent the disenfranchisement of the people of Northern Ireland, it settled for detached resignation: ‘Whether His Majesty’s Government is willing to countenance such a proposal … remains to be seen.’

In a context where this obvious solution presented itself, it is difficult not to draw the conclusion that the DUP negotiating team did not actually want it. Why might this be the case?

Dan Boucher is a former DUP director of policy