High noon for the DUP: The Brexit Deal, ‘Consent’ and the Abortion Debate in Northern Ireland

Published: 18 October 2019

Jonathan Evershed of University College Cork explores the DUP strategy ahead of Saturday's debates.

Since rumours began to emerge that the party may be preparing to accept some sort of Northern Ireland-specific solution to the Brexit impasse, there has been some cautious optimism that the DUP could play a pivotal role in landing a re-negotiated withdrawal settlement between the UK and the EU. Perhaps learning from mistakes made by Theresa May, Boris Johnson has been keen to try and keep the DUP well-briefed on negotiations in Brussels, and actively involved in shaping the UK’s negotiating position. After all, and as identified by Jack Sheldon and Michael Kenny in their research on Conservative attitudes and voting behaviour during the Brexit process, the DUP’s importance transcends their loss of leverage as a result of changing Parliamentary arithmetic: they have been something of a bellwether for wider Brexiteer opinion. When a new deal was announced on Thursday morning – one involving complicated mechanisms around both customs and consent – it was initially with reports that the DUP would support it. These reports were disproved shortly thereafter.

The reasons that the DUP have refused their support for Johnson’s deal are now well rehearsed. Mary C. Murphy and I argued in a paper (expediently!) published last week that, having not expected a Leave result in the Brexit referendum in 2016, the DUP’s subsequent involvement in the Brexit process has been motivated above all by a fear of being ‘sold out’. Indeed, the image of the DUP being abandoned by the Prime Minister abounds in much of the coverage of Johnson’s deal, with some validity. However, this belies the significance of the concessions that the EU have made in order, precisely, to meet key DUP demands. If the deal passes (a big if at this stage), Northern Ireland will remain in the UK’s customs territory: able to avail of (m)any benefits arising from any new post-Brexit British trade deals and preferential access to the EU single market. Guarantees on the consent of Northern Ireland’s devolved institutions mean that the provisions of the new Protocol on Ireland/Northern Ireland are potentially time-limited, at least in principle. In practice, Northern Ireland’s (growing) anti-Brexit and pro-backstop majority mean that consent is liable to be given for the continuance of these provisions long-term. But there is still a possibility that it won’t (injecting a degree of what SDLP MLA Claire Hanna called ‘rolling uncertainty’ into Northern Ireland’s already fraught devolution settlement). 

I maintain that the DUP could, with validity, have at least tried to sell these changes to the Protocol (no longer a ‘backstop’) as a significant win. That they didn’t speaks volumes. Their objection, in particular, to the new consent formula reveals that for the DUP this was never really about ‘consent’, but about control. Historically a staunch advocate of simple majorities and vociferously opposed to consociational mechanisms like parallel consent, the party has now apparently become a champion of minority protections and mutual vetoes. In refusing to back Johnson’s agreement and the consent mechanisms contained there-in, the DUP is tacitly acknowledging that theirs is the losing argument when it comes to Northern Ireland’s post-Brexit relationship with the EU.

On Monday, it is highly likely that they will also be demonstrated to be on the wrong side of another key argument – that about the right to choose. In line with the Creasy Amendment to the Northern Ireland Executive Formation Act 2019, on 21 October, in the absence of a restored Northern Ireland Executive, abortion rights (along with those to same sex-marriage) are scheduled to be extended to Northern Ireland. I have consistently argued that the DUP’s continued opposition to the extension of these rights enjoyed by British citizens on the ‘mainland’ flies directly in the face of its claims about the constitutional risk posed by post-Brexit regulatory divergence across the Irish Sea. And there have been claims that at least some within the party are quietly pleased that resolution of this issue – and this contradiction – has been taken out of their hands. However, all of the DUP’s MLAs (along with the TUV’s Jim Allister and three UUP MLAs) have signed a petition to recall the Northern Ireland Assembly on Monday, which will see the chamber at Stormont host its first debate since the collapse of the institutions in 2017. As intimated by Katy Hayward, that it is this issue – and the will to deprive women and other people who are or can be pregnant of their rights – above all others that has motivated such a petition is, to put it mildly, somewhat depressing. However, with Sinn Féin boycotting the sitting, and no formation of a new Executive likely, abortion rights campaigners may have reason to celebrate. 

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