Alan Whysall was a panellist in the session on Northern Ireland at the Unit’s State of the Constitution conference on 23 June. This revision of his talk draws on his paper for the Unit on Northern Ireland’s Political Future, and its accompanying blogpost. He argues that stable power-sharing can only return through good faith inclusive negotiation – which is not a part of London’s current approach – and a reinforcement of the foundations of the Belfast/Good Friday Agreement.

It is essential to bring all the Belfast/Good Friday Agreement institutions back as soon as possible: that unlocks the potential for political progress. Without the institutions, polarisation grows; the longer they are away, the harder ultimately the Agreement settlement is to sustain. And there is no alternative as a framework for the stable government of Northern Ireland.

Devolution still has wide popular support and the political class has a strong self-interest in restoring the institutions, if only because paying them not to undertake government is becoming unpopular. But there are big questions about how.

The government’s approach

Can the institutions be stably restored the government’s way? Setting aside for now judgements about the government’s approach, its integrity, or the extraordinary contents (breach of international obligations, vast delegation of powers to ministers) of the Northern Ireland Protocol Bill, this seems to me to be doubtful.

The London public narrative appears to be that the Protocol must be changed, because the DUP do not accept it and will not go back into government otherwise; and despite the opposition of a majority in the Northern Ireland Assembly. This is apparently according the Agreement its ‘primordial significance’, and will ‘restore the balance’.

But will the DUP return? Its position is very difficult from several points of view. It is hard for the party to take anything on trust from the Prime Minister and still keep the confidence of its electorate and its membership: Johnson’s commitments about Irish Sea border checks to the party’s conference a few years ago, with which the Protocol is at odds, still cause pain. Everyone is aware that a reversal of course by London, once Conservative leadership issues are resolved, is quite likely, given the potential impact of a trade war with Europe.

Meanwhile, though some say the Protocol Bill is an unheard of monstrosity, there are challengers to the DUP’s right who believe it does not go far enough.

As to timing, it is practically impossible for this bill to reach the statute book before the October deadline, after which the law requires new Assembly elections.

The DUP may be reluctant to face another election (despite public professions), given the narrow margins by which it won some seats in May, so may seek to avoid it. In theory at least, it could go back into the Executive – and then find a pretext for withdrawing again, giving a further 48 weeks of negotiation. Or it may press London to legislate to postpone elections – hints are emerging of this, but it carries the potential for great further controversy, with other parties (again) calling out government partisanship.

And Sinn Féin must also agree to form an Executive.There is no indication yet that it will refuse simply because London is seeking to rewrite its EU obligations.

But London’s approach is destabilising. There could be a different attitude if matters go further. It is hard to reconcile elements of the Protocol Bill with Northern Ireland’s continued relationship with the EU Single Market for goods. Its implementation would raise questions about the need for a border within Ireland, or between Ireland and the rest of the EU. Apart from the – incendiary – principle, this leaves some Northern Ireland industries vulnerable. In that context, other parties might find it impossible to rejoin an Executive.

As they might if the government appeared ready to use the current bill to change the terms of the Assembly ‘democratic consent’ vote on the Protocol in 2024, conferring a unionist veto; or if it were seen watering down its Agreement commitments towards the European Convention on Human Rights through the current Bill of Rights Bill.

Meanwhile the EU – and key member states – are adamant that the Protocol will not change, though its operation may.

The protagonists are well dug in, with unionist expectations much raised by London. If they are dashed, unionism would find it hard to come back to the Executive. If they are fully implemented, other parties might. Barring EU capitulation, which is highly unlikely, the route to the return of power-sharing is very questionable – as Theresa May, opposing the Bill, said in the second reading debate.

Is getting the DUP back in all that is needed to sustain the Agreement?

Resolving the Protocol is undoubtedly the first priority. But recent history suggests that more needs to be done to put the Agreement institutions on a stable footing. A returning Executive would be extremely fragile.

The institutions have been intermittently threatened with collapse for most of the last decade, and disappeared for three years between 2017 and 2020. Even before the Protocol dispute, the Executive was again teetering on the brink; perhaps only COVID-19, and the electoral unpopularity that would have come to a party abandoning government during an epidemic, saved it.

We are seeing a crumbling of the Agreement’s underpinnings.The difficulties run much deeper than the Protocol. We have had sticking plaster political solutions before: they may be necessary, but are not sufficient.

First, there has been a dwindling of the effort to promote reconciliation, promised by the Agreement, and a growth in some forms of sectarianism; and of paramilitary influence on politics, indeed paramilitary activity.

This feeds into, and feeds off, political polarisation, itself much increased by the Protocol stand-off, and London’s raising of unionist expectations. It all undermines the stability of the institutions.

Second, throughout the period of devolution Executives have often carried out government and public service delivery poorly – leading for example to underperformance in the NHS much worse than is encountered in England. Such failures make the institutions less publicly valued, and their disappearance less unthinkable.

Third, the institutional structures are coming increasingly into question, given changing voting patterns, and an increasing feeling that one party should not be able to bring the system down. Much more of this debate might be expected after a further Assembly election.

But the fourth crumbling underpinning is the approach of the UK government. Its current behaviour is radically different from the way that governments of all parties have dealt with Northern Ireland since London learned, painfully, about its handling some decades ago. By those standards it is highly irresponsible.

And even more so since the Assembly election. Whatever public rationale is given, people in government are nakedly playing with Northern Ireland’s future in pursuit of Brexit objectives and the Conservative leadership.

In consequence, London has substantially forfeited trust on all sides in Northern Ireland, as polling shows. With that has gone the ability to promote compromise.

And London has turned its back on the Dublin partnership, which has been at the heart of political advance in Northern Ireland for decades.

Westminster manoeuvring aside, it is likely that the political class, and Whitehall, are increasingly forgetting the basics about dealing with Northern Ireland. There was never widespread understanding, indeed, but key decision-makers had some, and there was a recognition of the need for sensitivity, evenhandedness and responsibility; and that that approach served the UK’s wider national interest. Bipartisanship at Westminster flowed from this.

It is also possible that the Secretary of State is now less plugged into the Northern Ireland community than his predecessors were.

Ministers may in consequence of all this to some degree believe their own propaganda.

How might matters be sorted out?

How, concretely, might the institutions be restored? Ultimately, the Protocol issue requires inclusive, good faith political negotiation(as the last Secretary of State, Julian Smith, stressed in the second reading debate). We have had little such negotiation lately. Press reports suggest the Protocol Bill was negotiated principally with the European Research Group within the Conservative Party, and perhaps to some degree with the DUP.

There is scope for further flexibility from Brussels, as was said in my discussion paper – but also from London, whose approach to Brexit underlies many of the Irish Sea border issues.

But at an early point there needs also to be a dialogue and a process of renewal going beyond the Protocol, to set the Agreement on firmer foundations.

I suggested in the discussion paper how we might go about developing such a process, possibly leading to wider political agreement during the 25^th anniversary year next year. Increasingly, however that timescale looks improbable. Such renewal would be difficult: it is by no means a prize just there for the taking; it may involve very painful choices and thrashing it out may be very difficult.

And I suggested that, especially in the present state of politics, civic society needs to take a bigger role in putting forward ideas. That will not be easy either: as has been seen again recently, people outside politics who annoy politicians or political activists sometimes have a hard time.

But ultimately, a wider process may be the only course open to avoid general political collapse.

And the paper suggests that as part of a renewal package, with Dublin and Brussels as significant partners, it might be easier politically to find a resolution of the Protocol issue – and secure other benefits for Northern Ireland. Brussels, which has always thought of itself as a friend of the peace process, might be readier to show flexibility to a united lineup of parties and governments, preparing to start on a new and more promising era of devolved government.

But it is hard to see this happening quickly: London will not readily be regarded as an honest broker again in Northern Ireland.

Future prospects

If the institutions are not restored stably, prospects are dire.

We would be left with a political vacuum, traditionally considered dangerous in Northern Ireland, and no obvious way out. Many would challenge the legitimacy of government from London, but it would have to take much more responsibility in the post-Brexit context: matters could not be left to the civil service, as after the collapse of the institutions in 2017. And there would be much divisive argument over Dublin’s role.

Big questions would start to be asked about the Agreement.

Some see Irish unity as the inevitable outcome, and the solution, to all these problems. To me, an early vote for unity has always seemed unlikely. Attitudes are too entrenched; the potential disarray that an early unity vote might entail would put off many; there is no blueprint available of what a united Ireland might look like.

But the course that London, and unionists, are taking at the moment is a doubtful strategy for long-term survival of the Union. Though the political and legal contexts are distinctly different, Michael Keating’s question about Scotland, posed on this blog last week, ‘Are unionists the biggest threat to the Union?’– is also apt here.

Political unionism, no longer a majority, is liable to alienate many in the middle ground in Northern Ireland. Attitudes formed now may, with the coming to the political fore of a new generation less set in its views, lead to a different constitutional outcome. With London repeatedly doing things previously unimaginable, changes in attitude may come earlier than expected.

The danger to the Union is not just in Northern Ireland. Polling in Great Britain suggests that feelings of affinity with Northern Ireland are rather weak. If there were a stand-off with the EU over the Protocol that had repercussions in Great Britain, the willingness there to make sacrifices for Northern Ireland might be tested, and pointed questions asked about the place, and the cost, of Northern Ireland within the Union.

And ultimately, where may the Protocol issue leave unionism? Unionists on the one hand say it is absolutely vital that Northern Ireland remains under the sovereignty of London. But they also not infrequently accuse the rest of the UK of betrayal. And the Protocol issue is quite likely to end the same way: with a harsh impact on political careers, and parties; but most of all on the coherence of the unionist outlook.

Conclusion

We absolutely need power-sharing back, on a sounder footing, if the Agreement settlement is to survive. Civic society may have a vital role in facilitating that. But London’s approach is the critical factor.

About the author

Alan Whysall is a former civil servant in the Northern Ireland Office and now an Honorary Senior Research Associate at the Unit, specialising in politics in Northern Ireland.