Positive movement on protocol a tough sell to unionists who know desperate DUP spin is coming

There should be political generosity from Brussels on a protocol deal, but unionism will have to compromise, Bertie Ahern told Westminster’s Northern Ireland Affairs Committee on Monday. The former taoiseach said he does not believe the DUP’s “seven tests” for a deal can be met.

“What about six?” DUP MP Jim Shannon replied – a joke, but also a hint of the wriggling to come.

Jeffrey Donaldson set the tests on becoming DUP leader in June 2021, and he has stuck to them since. They were designed to be met – a deal that can be sold to unionist voters has always been Donaldson’s plan and the DUP’s only way out of its Brexit hole.

With judicious semantics and conceptualisation, it should be straightforward to fit five of the seven tests around any deal likely to emerge.

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What London calls the red and green lane model and Brussels calls the express lane can meet test three: “Not constitute a border in the Irish Sea”. There would be a border in the sea, but only between the UK and the EU, not between Britain and Northern Ireland.

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This also meets the handily repetitive test five: “Result in no checks on goods going from Northern Ireland to Great Britain or from Great Britain to Northern Ireland (and remaining in Northern Ireland)“.

There was never a requirement for checks from Northern Ireland to Great Britain, only exit declaration paperwork the UK never imposed and the EU has given up seeking.

Dual-market access puts Northern Ireland on a better footing than Britain for trade – not much to complain about

An even more audacious case of asking for what has already been given is test two: “Avoid any diversion of trade”. This is in the protocol, where it is a reason to trigger the dreaded Article 16, entitling either side to “take appropriate safeguarding measures”.

Test seven is also redundant: “Consent from a majority of [Northern Ireland’s] citizens for any diminution of its status as part of the UK”. This is the Belfast Agreement consent principle extended to the protocol. However, the protocol already contains regular four- to eight-year Stormont votes on its continued operation. The DUP has not attempted to add a unionist veto by requiring cross-community majorities.

Test one – “Fulfil Article 6 of the Act of Union” – comes first on the list because it has been the basis of legal challenges to the protocol from a range of unionist grandees, including former UUP leader David Trimble, and because amending the founding law of union has become neuralgic to some loyalists.

The 223-year-old law, already amended many times, requires the citizens of Britain and Northern Ireland “to be on the same footing in respect of trade and navigation” and to have “the same privileges ... in all treaties with foreign powers”.

Dual-market access puts Northern Ireland on a better footing than Britain for trade – not much to complain about. On foreign treaties, the North is included in UK trade deals because it is in the UK customs territory. The EU has agreed this from the outset, then complained about threats to the single market. More clarity on this would help.

All hope for Donaldson lies in modifying the protocol role of the European Court of Justice

Where Donaldson really needs help is with the final and related tests four and six: “Give the people of Northern Ireland a say in the laws that govern them”, and “Ensure no new regulatory borders develop between Northern Ireland and the rest of the UK”.

EU laws – regulations – will continue to apply and be updated in Northern Ireland, which will have no say in their creation.

No serious observer disputes the protocol has a democratic deficit. Sinn Féin, among others, has proposed addressing it by electing northern MEPs. This idea appears dead. In the House of Lords last week, former Labour northern secretary Peter Hain suggested Stormont have powers similar to Norway to propose amendments to EU laws that affect Northern Ireland. This is wildly optimistic. The UK plan for “dual regulation” means EU law would only apply to goods where firms chose it. Northern Ireland’s business community has declared this unworkable.

All hope for Donaldson lies in modifying the protocol role of the European Court of Justice. While the court must remain the sole arbiter of EU law, a joint arbitration panel could be added to refer questions of EU law to it. Such panels are standard in trade deals, including the UK-EU free trade agreement. There is a comparable dispute resolution mechanism in the UK Withdrawal Agreement, to which the protocol is part. Movement on this issue is a realistic goal in negotiations, although far from guaranteed. It would allow Donaldson to claim Northern Ireland was not subject to untrammelled EU jurisdiction, although that would be a tough enough sell to a unionist electorate that knows desperate DUP spin is coming.

Without some EU generosity on the court’s role, Donaldson’s scope for compromise will be exhausted.