Opinion

Alex Kane: New battleground for unionism will be devolution versus direct rule

Alex Kane

Alex Kane

Alex Kane is an Irish News columnist and political commentator and a former director of communications for the Ulster Unionist Party.

Alex Kane
Alex Kane Alex Kane

ON December 22 last year, Jim Allister noted: "Win or lose the Supreme Court challenge to the NI Protocol, it was a valuable exercise because it flushed out with forensic clarity the real meaning and effect of the protocol… If we do not succeed, it will not be the end of the battle against the union-dismantling protocol, but rather will underscore the necessity to step up the political campaign against it. The legal challenge and the political opposition were complimentary parts of a twin-track approach, but one does not suppress the other… The affront which the protocol presents to UK sovereignty is something no unionist can ever come to terms with."

Well, Wednesday’s judgment from the Supreme Court certainly provided the clarity he and others were looking for: the judges unanimously rejected the appeal on all grounds. Indeed, so clear was it that Ben Habib, one of the appellants, described it as a ‘victory’ – albeit for ruthless clarity, I suppose, rather than for anything else.

In legal terms there is, as far as I know, nowhere else to go: the High Court, Court of Appeal and Supreme Court have all handed down the same rulings. Crucially, the Supreme Court judgment was, as I mentioned above, a unanimous one.

I suspect the appellants have known all along that this was always going to be the likely outcome. Which is why they have been trailing the argument that the legal route was just one part of the twin-track campaign against the protocol.

But they know, of course, that these three judgments present them with a problem, not least of which is that the sovereign parliament of the UK voted for the protocol in the first case; that the Supreme Court of the UK has ruled the protocol lawful (and not a constitutional threat to NI); and that the sovereign parliament will, again, endorse an EU/UK protocol deal in the next few weeks.

My immediate response to the judgment was a tweet, in which I suggested it "might be a good idea if unionism now thought long and hard about consequences rather than jump feet first with a response".

DUP leader Sir Jeffrey Donaldson (left), Baroness Kate Hoey (second right) and former first minister Dame Arlene Foster (right) outside the UK Supreme Court in London. Picture by Aaron Chown/PA Wire
DUP leader Sir Jeffrey Donaldson (left), Baroness Kate Hoey (second right) and former first minister Dame Arlene Foster (right) outside the UK Supreme Court in London. Picture by Aaron Chown/PA Wire DUP leader Sir Jeffrey Donaldson (left), Baroness Kate Hoey (second right) and former first minister Dame Arlene Foster (right) outside the UK Supreme Court in London. Picture by Aaron Chown/PA Wire

As I expected, though, the suggestion fell on deaf ears. I was only on page 6 (of 34) of the judgment when the serial pinging of my mobile phone alerted me to the wreck-the-entire-house response from elements of unionism and loyalism. They had probably been prepared hours – maybe days – earlier, flagging up a strategy that has been simmering on the backburner since it looked increasingly likely that victory on Wednesday was a non-runner.

But in my experience, on-the-hoof strategies rarely deliver the desired outcome. I’m well aware that there are people whose sole agenda is the destruction of the assembly and the Good Friday Agreement: and I’m pretty sure they wouldn’t have let a ‘good’ judgement on Wednesday, or a ‘good’ EU/UK deal in a few weeks, stand in the way of that agenda. There would always be another hurdle to be crossed, another red line to be painted, another ‘cunning plan’ to be run up the nearest flagpole.

Regular readers will know I have always had concerns about the protocol: a sense, if you like, that something about my personal and political relationship with the rest of the United Kingdom had changed. The feeling, as I put it, that I had been nudged into the constitutional equivalent of a granny flat.

I had always assumed that Brexit would require a bespoke arrangement between north and south (let’s face it, we’ve a long history of bespoke arrangements in NI), yet I hadn’t reckoned on something like the protocol. And nor had I reckoned on the DUP throwing its lot in with the establishment wing of English nationalism and playing Trilby to the ERG’s Svengali.

But, in that awful cliché, we are where we are. And where we are is in a position with one section of unionism and loyalism wanting to rattle the cages, while the other, I suspect, will be calculating the damage which could be done if direct rule – with Irish government input – is reintroduced as a long-term ‘solution’.

The unionist/pro-union community is bigger, much bigger, than the alliance consisting of the TUV, LCC, Orange, new-generation loyalism and the harder elements of the DUP. That alliance has certainly been making the running and most of the noise since late 2019, but circumstances have changed and will be changed more by the Supreme Court judgment and the shape of the EU/UK deal.

The new battleground for unionism and loyalism – and the smaller-u pro-union groupings – will become devolution versus direct rule.

The direct rulers will play the Acts of Union and ‘lack of consent’ cards, among others, but will have to set out a coherent case for how direct rule protects and promotes unionism in NI.

Meanwhile, the devolutionists will have to explain why preserving the assembly/executive, where unionism doesn’t have an overall majority and SF seems likely to remain the largest party, is a better way of protecting and promoting their interests.

Key to all of this is Jeffrey Donaldson. The side he takes will be best placed to win.

I know he’s a devolutionist, but I also know he doesn’t want the same fate as David Trimble: taking a huge personal and political risk, only to see himself and the party he leads destroyed by another wing of unionism.

The anti-protocol, anti-GFA argument has a head start, although it hasn’t been fully tested yet, doesn’t have a legacy of success as such, and underperformed in the May 2022 election.

The more flexible, for want of a better word, wing of unionism is, too often, incoherent and lacks a big-hitting crowd pleaser to boost its chances.

But both camps have one disadvantage in common: they cannot rely on anyone in the present government to do them any favours.