TPQ: Political analysis @ North of Ireland

Mike Burke ✍ “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.” Antonio Gramsci, Selections from the Prison Notebooks.

As a republican, I don’t believe the north has any democratic legitimacy. Partition—conceived and carried out in coercion, sectarianism and perfidy—is an affront to democracy. I opposed the Good Friday Agreement precisely because it bestowed retrospectively a semblance of democratic validity on the north. In the name of parity, equality and reconciliation, it institutionalized an antidemocratic northern veto over Ireland’s constitutional status.

As a democrat, I respect the popular ratification of the GFA in the dual referendums in May 1998, however much I fundamentally disagree with some of the Agreement’s terms. I understand that, for now, those terms structure the system of governance in the north and set the rules of constitutional standing.[1] I invite other democrats to join me in examining what the GFA says about the democratic basis of the north’s place in the union. By the GFA’s own standards, the democratic justification for the north is in serious question. Majority consent to the north’s constitutional status as part of the UK is dissolving.

The north is in a Gramscian-like crisis of democratic legitimacy: majority consent for the old constitutional order of union is dying or dead, but majority consent for the new arrangement of unity cannot (yet?) be born. In this intermediate constitutional condition appears a great variety of morbid symptoms, which indicate that the death of the old may be painful and the birth of the new difficult. The appearance (or reappearance) of these symptoms adds a second dimension to the north’s crisis of democratic legitimacy. Unionists are increasingly embracing antidemocratic measures to protect the north’s place in the union.

The next three sections examine the first dimension of the crisis of democratic legitimacy, the evaporation of majority consent to the union. They track the evolution of northern public opinion on the question of constitutional status and show that support for the union is currently hovering below 50 percent, just under the threshold of majority consent. They also analyze the role of Brexit in both decreasing preference for the union and increasing support for Irish unity.

The fourth section looks at the morbid dimension of the north’s crisis of democratic legitimacy. It chronicles the turn to antidemocracy in unionism’s campaign to preserve the constitutional status quo. Currently, that campaign has two related objectives: to stop any momentum towards Irish reunification and to scuttle what unionism imagines as the dire constitutional implications of the protocol. The fifth and final substantive section argues that the Windsor Framework deal on the protocol breathes new life into unionism’s morbid predispositions.

The Good Friday Agreement and Public Opinion: Two becomes three

Much of the recent discussion of majority consent focuses on the GFA’s provisions for constitutional change. Commentators scrutinize every piece of data in public opinion surveys to speculate about Irish unity winning or losing a border poll (Tonge, 2022). In one sense, this focus is understandable given the heightened interest in a border poll since the Brexit referendum of 2016 and the ensuing mobilizations meant to promote or stifle constitutional change. In another sense, it is unacceptable. Fixating about the potential outcome of a border poll obscures an equally important finding of the surveys: the withering away of majority support for the north’s place in the union. Some observers display an acute political blindness in enthusiastically dismissing or marginalizing the prospects of constitutional change while missing entirely the increasingly tenuous democratic credentials of the constitutional status quo (White, 2020a & 2020b).

The discussion of the recent ARINS-Irish Times poll on Irish unity takes this exuberant myopia to unprecedented levels.[2] Commenting on the 27 percent support for unity in the north and the seemingly frivolous nature of the aspiration for unity in the south, Irish Times columnist Stephen Collins notes:

The only conclusion from the recent polling on both sides of the Border . . . is that a united Ireland is as much of a mirage today as it was when the Anglo-Irish Treaty was signed 100 years ago” (Collins, 2022).[3]

Let’s ignore the hyperbole in the fatuous historical comparison to say simply but emphatically that Collins’s conclusion is not the only conclusion that can be drawn from the polling. Another is that the poll shows only 50 percent of citizens in the north—a bare majority at best—consent to the current constitutional order. Neither Collins nor other Irish Times contributors seem even to notice let alone examine this glaringly obvious finding of their own poll (Leahy, 2022b & 2022c).

The GFA’s provisions on majority consent encompass more than just constitutional change; they also relate directly to the north’s current constitutional status as part of the UK. The focus of mainstream discussion needs to be correspondingly broadened. Opinion surveys should be considered not just for what they say about a possible border poll, but also for what they say about existing constitutional arrangements. Such a dual perspective can uncover insights that remain hidden in a one-sided concentration on the impossibility or imminence of constitutional change (Humphreys, 2018; Burke, 2021b).[4]

Commentary on the religion results of the 2021 census—showing more Catholics than Protestants in the north—notes that the sectarian rationale for the existence of the Stormont regime has vanished (O’Doherty, 2022; Kearney, 2022; Feeney, 2022; Irish News, 2022). Commentary on constitutional opinions in representative surveys needs to do something similar by noting that the GFA’s democratic rationale for the north’s place in the union is dwindling.

Let’s look at the clause of the Agreement that speaks to the democratic foundations of the north. The GFA acknowledges that “the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people” (Constitutional Issues, section 1(iii)).

I’ll focus on three points here. First, this clause recognizes that in 1998, at the time of the Agreement, the wish of the majority was to maintain the union. Second, in a crucial passage that’s routinely ignored, it asserts that the democratic legitimacy of the north’s status as part of the UK “reflects and relies upon that wish.” Third, the quoted clause is part of other clauses that provide for a binary border poll asking voters to choose between the two options of union and unity. In such a poll, one or the other of the constitutional options must receive majority support, assuming there is no tie. If support for union falls below 50 percent + 1, support for unity must rise by an equal amount. As soon as union loses its majority, unity gains its own majority. If not, not.

In the absence of a border poll, democratic legitimacy in the form of majority consent resides in the court of public opinion. And that court is not so binary as a border poll based on two constitutional options. Public opinion shows clearly that there are at least three positions, not two, in the current constitutional debate. Supporters of union and unity are joined by a third group of people whose constitutional position is often described as “other.” Most of this group are undecided; they just don’t know whether they favour union or unity.

Taking into account this group of “other” citizens complicates the simple constitutional binary that automatically bestows majority status on one of the two possible outcomes. Recent opinion surveys demonstrate that support for the union has dipped below 50 percent but support for unity has not reached the majority threshold. None of the three constitutional positions—union, unity or “other”—currently commands support from a majority of citizens. Each of them is preferred by only a minority of the public.

The disappearance of majority consent for the union has important implications for the democratic legitimacy of the north. In the words of the GFA, the north’s status as part of the UK no longer “reflects and relies upon” “the present wish of a majority of the people.” That is, republicanism aside, even the logic of the Agreement compels us to question the north’s democratic basis and acknowledge that it is teetering on the precipice of democratic illegitimacy.

Constitutional Limbo

A border poll is not inevitable. The Northern Ireland Act 1998 obliges the Secretary of State to call a poll if he believes it likely that a majority of voters would support Irish unity. Court rulings and the position of the Northern Ireland Office have rendered meaningless the Secretary of State’s so-called “mandatory duty” to call a poll in this circumstance. In effect, the Secretary of State has unfettered authority over the holding of a vote and may not call one for quite some time, or ever (Burke, 2020). If there is to be a constitutional vote, its calling will have as much or more to do with British state expedience than it will with what the northern majority thinks about the border.

Absent a border poll, representative opinion surveys are the best method to assess the extent of popular consent to the union. Figure 1 shows the latest results from the 2021 Northern Ireland Life and Times survey (NILT, 2021a). The survey measures constitutional preference in two ways. First, it asks respondents if they:

think the long-term policy for Northern Ireland should be for it to remain part of the United Kingdom, with direct rule; remain part of the United Kingdom, with devolved government; reunify with the rest of Ireland; or be an independent state.

A second measure asks respondents:

Suppose there was a referendum tomorrow on the future of Northern Ireland and you were being asked to vote on whether Northern Ireland should unify with the Republic of Ireland. Would you vote ‘yes’ to unify with the Republic or ‘no’? (NILT 2021c, pp. w66 & w67). [5]

I’ve examined the implications of the two different questions in other postings so will focus here just on the basic results (Burke, 2021a & 2021b).

The bar chart in Figure 1 shows the percentage of all respondents who support union (the orange bar), unity (green) and “other” (grey) on each measure. For long-term constitutional preference, the percentage supporting union includes those who favour remaining in the UK with devolved government or with direct rule. The percentages for the two measures sum separately to 100 because all valid responses are counted.[6] “Other” is a miscellaneous category including various kinds of responses but with “don’t know” clearly the most popular response. On the long-term preference measure, for example, the 21.7 percent in the “other” category breaks down as 12.5 percent who said don’t know, 6.9 percent who said independent state, and 2.3 percent who said some other constitutional arrangement. Similarly, on the vote tomorrow measure, the 18.5 percent classified as “other” includes the responses don’t know (11.4%) and would not vote/not eligible to vote (5.1%) in addition to various write-in answers (1.9%).

The main point in Figure 1 is that the north resides in a state of constitutional limbo, caught between the poles of union and unity. The data show that none of the three constitutional positions is backed by a majority of respondents. Support for union comes close to a majority, with 48.6 and 47.7 percent on the two measures; support for unity is at 29.7 and 33.8 percent; and “other” stands at 21.7 and 18.5 percent.

We must leave open the possibility that the “true” level of support for the union could be just above 50 percent because the sampling error in the 2021 survey is plus or minus 2.6 percentage points. On the vote tomorrow measure, for example, pro-union sentiment stands at 47.7 percent. Factoring in sampling error, we can say that the “true” level of support for union is most likely somewhere between 45.1 percent (47.7 minus 2.6) and 50.3 percent (47.7 plus 2.6).[7] Wherever that true level might be, the democratic legitimacy of the union is on very shaky ground.

Other opinion polls broadly confirm the results in Figure 1. LucidTalk’s “poll of polls”—examining 11 major surveys conducted in 2021 and 2022—finds that on average 48 percent of respondents support the union, 37 percent favour unity and 15 percent answer don’t know or not sure (LucidTalk, 2022a). John Doyle, Director of Dublin City University Institute for International Conflict Resolution, studied eight major polls from 2019 to 2022, with similar results: support for union averaged 48.9 percent, with six of the eight polls in the 45 to 49 percent range; unity averaged 37.3 percent, and don’t know/did not answer 13.9 percent (Doyle, 2022). The polls in these studies employ different survey methodologies with varying sampling designs and different sample sizes. Yet, on average, all converge in showing three minority positions on the constitution.[8]

Opinion surveys that allow for three (or more) responses on constitutional preference leave open the possibility of finding what we have in fact just found: there is no majority anywhere. But analysis like that in Figure 1 still leaves crucial questions unanswered. How has union lost the majority support it had at the time of the Agreement? Has the bloc of “others” grown over time? Or has growth been concentrated in the group supporting Irish unity? To answer these questions, we need to look closely at how constitutional preferences have changed over time.

Figure 2 displays, for the years 1998 to 2021, the patterns of support for the three constitutional positions using the NILT’s measure of long-term preference. The dots represent data points showing, in 1998 for instance, that 56.6 percent of respondents support union, 21.9 percent support unity and 21.5 percent choose “other, with the unity and “other” dots mostly on top of one another.[9] The curves summarize the pattern of each set of dots and indicate trajectories or trends. For the most part, I’ll restrict my comments to the period since 2015, which is crucial to understanding the loss of majority support for the union. A quick inspection of the figure shows that 2015 (or thereabouts) appears as a kind of inflection point: all three curves start to change shape in that year.

The orange curve in Figure 2 shows that support for the union is trending steeply downward since 2015. Pro-union sentiment plummets from 69.4 percent in 2015 to 48.6 percent in 2021. It is below the majority threshold for the first time since 2001, when there was a momentary drop to 49.5 percent. Support for the union is now at its lowest level ever in the NILT time series. Two countertrends, one stronger than the other, account for this loss of majority support for union. First, the green curve shows that support for unity is trending significantly upwards from 2015. The number of respondents supporting unity more than doubles, rising from 14.3 percent in 2015 to 29.7 percent in 2021, its highest level in 15 years.[10] Second, the grey curve shows a slight upward trend in “other” responses since about 2015, rising from 16.3 percent in that year to 21.7 percent in 2021. Overall, though, we can see that the “other” category has not grown very much over time: the number of respondents choosing “other” is the same in 2021 (21.7%) as in 1998 (21.5%). The trends on the NILT’s other measure of constitutional preference, what I earlier called the vote tomorrow measure, are similar to those shown in Figure 2.[11]

To clarify what’s happening, Figure 3 gives an alternative view of the trends since 2015. It shows the percentage share of constitutional preference taken by the three responses of union, unity and “other.” The length of the orange bar shrinks considerably over the period because union’s share of the constitutional total declines by 20.8 percentage points, from 69.4 percent in 2015 to 48.6 percent in 2021, as we saw in the previous figure. The length of the green bar grows noticeably from 2015 to 2021 because unity’s share increases by 15.4 percentage points. The grey bar lengthens a little as the “other” share of the total rises by 5.4 points. To summarize, of the 20.8 percentage point decline in pro-union sentiment since 2015, growth in support for unity accounts for 15.4 percentage points and growth in the “other” category accounts for the remaining 5.4 points. These changes represent aggregate figures that combine patterns across the entire sample of respondents. Many different individual-level changes could yield this same overall result.

Both Figure 2 and Figure 3 show how plainly different are the post-2015 trends for union and unity. If support for union continues to fall and support for unity rise, with no border poll in the offing, the north’s crisis of democratic legitimacy will only deepen.

The Brexit Effect

While the trends I’ve identified clarify the arithmetic behind the loss of majority support for the union, they do not explain it. Brexit is the most obvious but probably not the only proposed explanation of the simultaneous fall in support for union and rise in support for unity that we see in the post-2015 period. The NILT has some additional data that is directly relevant to estimating the influence of Brexit.

Figure 4 gives answers to the survey question “Do you think that the UK leaving the European Union has made a United Ireland more likely, less likely, or has it made no difference?” The NILT includes this question in every survey since 2016. Like in Figure 2, the dots are data points, but here they indicate the percentage of respondents who say that Irish unity is “more likely” (in green), “less likely” (orange), or that Brexit has made “no difference” (grey). The calculation of percentages includes “don’t know” responses although they are not plotted. This figure has straight lines summarizing the pattern of each set of dots because the trends in this case are linear.

The green line shows that the percentage of respondents saying Brexit has made a united Ireland “more likely” increases sharply over the period, from 26 percent in 2016 to 63 percent in 2021. The orange and grey lines indicate that the percentages for “less likely” and “no difference” decrease over time, with the fall in “no difference” relatively steep. A striking feature of the figure is that the gap between the green and orange lines grows larger over time, mostly due to the steep rise in “made a united Ireland more likely” responses. This gap is a measure of the net effect of Brexit on Irish unity. It is about 15 percentage points in 2016 but grows to 58 points in 2021. Respondents are increasingly inclined to think that Brexit has made Irish unity more rather than less likely. By 2021, this difference in favour of a united Ireland is overwhelming. The extended controversy over Brexit and its implications, becoming more bitter over the years covered in the figure, has in the opinion of survey respondents disproportionately aided the cause of Irish reunification.

The question mapped in Figure 4 is asking each respondent to speculate generally about how they think Brexit might influence the likelihood of Irish unity. Overall, respondents surmise that Brexit has made a united Ireland more likely. This question is at best an indirect estimate of the impact of Brexit on individual constitutional preferences. The NILT surveys also include a more direct question asking respondents about their own attitudes towards Brexit and Irish unity:

Does the UK leaving the European Union make you yourself feel more in favour of a United Ireland, less in favour, or has it made no difference?

Figure 5 plots the answers to this question. Like in the previous figure, the grey line slopes downward, indicating in this case a marked drop in the number of respondents saying Brexit has made “no difference” to their feelings about a united Ireland. This response remains the most popular option in each year, but over the period more and more people are saying that Brexit has made a difference to how they feel. And again, as in Figure 4, the net Brexit effect works to the advantage of Irish reunification. The increasing gap between the green and orange lines is key once more. In 2016, 16 percent of people say Brexit has made them feel more in favour of a united Ireland and 6.6 percent say less in favour, a gap of less than 10 percentage points. That gap more than doubles to 23 points in 2021, with 37.1 percent of respondents saying “more in favour of a united Ireland.” The green-orange gap is smaller in Figure 5 than it is in Figure 4; but both figures indicate that the net Brexit effect on constitutional preference is heavily in favour of Irish unity.[12]

There is more than a little irony in the fact that the DUP’s pushing of a hard Brexit to fortify the northern border and secure the union only exposes the democratic fragility of the north’s place in the UK. Brexit is not, of course, the only factor accounting for the downward trend in support for the union and upward trend in support for unity that we’ve observed. Other possible explanations include long-term demographic change of the kind described in the 2021 census, shifting political allegiances, Westminster’s descent into farce, the DUP’s leadership instability and policy incoherence, and consolidation of the pro-unity lobby, especially when compared to the incipient and fragmented nature of advocacy for the union.

Morbid Symptoms: “I’m a unionist before I’m a democrat”

The first dimension of the crisis of democratic legitimacy in the north can be stated succinctly: according to the benchmark set by the GFA, the north is mired in a constitutional-democratic vacuum, with neither union nor unity eliciting majority consent. We have just seen how Brexit weakens the democratic rationale of the north’s place in the UK. The second dimension of the crisis is revealed by the many disturbing developments that fill the void caused by the north’s in-between and ambiguous constitutional status. Unionists increasingly challenge democratic principles and practices, including those underpinning the GFA. And Brexit noticeably quickens unionism’s antidemocratic turn.

Too many unionists display a selective and self-serving commitment to democracy. They applaud democracy when it works to their advantage. They abandon democracy when it impedes their aims. They are abandoning democracy now. In some parts, the morbid movement to antidemocracy is not new. But there is an observable resurgence, a new intensification and a worrying confluence of antidemocratic attitudes and actions among unionists and their allies. Unionism remains a diverse movement that encompasses many tendencies, but the antidemocratic strain is clearly in the ascendant. The beliefs of activist Jamie Bryson—“I’m a unionist before I’m a democrat” and “Unionism comes first, above all else”—are all too influential within contemporary unionist thinking (Cahill, 2022).

I’ll briefly discuss six morbid symptoms: opposition to the GFA’s majority consent rule for constitutional change, attempts to expand the reach of the unionist veto to include almost all conceivable matters, increasing disdain for the democratic choices of nationalist and republican voters, open and relentless disrespect for legal obligations willingly entered into, shameless scaremongering, and flagrant use of coercive threats. This list is illustrative rather than exhaustive.

Together these symptoms represent an additional dimension to the crisis of democratic legitimacy. As the north’s current constitutional status becomes democratically questionable, unionists increasingly question democracy. The newly fragile democratic basis of the union is just the latest in a series of shocks to unionism’s previous hegemonic regime. Gone are the Protestant majority in the north, the unionist majority in the Assembly, unionist eligibility for the office of First Minister in the Executive, and unionist predominance among the district council electorate. Gone also is unionism’s majority in northern representation at Westminster. As each pillar of dominance crumbles, “unionism realises that its past reliance on the will of the majority can now be turned against it” (McBride, 2023b). Unionism’s primary response is to turn against democracy.

The morbid campaign to protect the constitutional status quo has two practical aims, both of them negative. The first and longstanding aim is to protect the north’s place in the union by stifling movement towards Irish unity. Brexit gives new urgency to this aim, as we saw in the previous section. The second and related aim, occasioned by Brexit, is to defeat the protocol. I’ll draw constantly on these two aims as I examine the various morbid symptoms.

The first symptom concerns the antidemocratic challenges to the long-established convention for constitutional change. As long as unionists were the majority in the north, they were content with the constitutional guarantee that there could be no change to the status of the north without the consent of the northern parliament or people. This guarantee, which dates from partition, is entrenched in the GFA’s majority consent clause. In 1998, Protestant support for the consent clause was virtually unanimous (98%), even among those who voted against ratification of the Agreement. Support for majority consent remained exceedingly high (94%) at the same time that Protestants became disillusioned with other elements of the 1998 settlement (Hayes & McAllister, 1999, 2001; Hayes, McAllister & Dowds, 2005). But, as unionists lose their majority status and as the north’s place in the UK comes under threat, unionist voices begin directly to challenge the majority consent rule.[13] Antidemocratic resolutions replace the once popular protocols of the GFA.

Two proposals dominate the discussion to replace the Agreement’s 50 percent + 1 formula for constitutional change with a system of unionist privilege that effectively rules out a united Ireland. The first is that a supermajority be required for Irish unity to win a border poll, the second that explicit unionist consent be required for constitutional change. Both proposals in effect give unionists a veto over a change to the north’s constitutional status, with a supermajority being a less direct and perhaps less stringent form of veto.[14]

Jamie Bryson in August and DUP MP Ian Paisley in November called for the supermajority rule, with Paisley submitting a private members’ bill in the House of Commons that had the backing of his party (Bryson, 2022; UK Parliament, 2022). Neither call specified the size of a supermajority but we can assume that it will be something considerably beyond the majority consent threshold of 50 percent + 1. The logic of a supermajority is linked directly to obtaining sufficient unionist consent to constitutional change. The assumption is that a large majority for Irish unity in a border poll could not be achieved unless a significant number of unionists voted in favour of a united Ireland. The larger the size of the supermajority, the greater the number of unionists that would need to agree to reunification, other things being equal.

Influential unionist commentators, to their credit, dismissed the latest incarnation of the supermajority idea, with Sam McBride of the Belfast Telegraph calling it “monumentally stupid,” “pathetically desperate,” and “ham-fisted” (McBride, 2022). He and Alex Kane criticize as unfair the attempt to move the democratic goalposts in the middle of the game (Kane 2022). They both point out that the proposal makes unionism look weak, as if it fears the union might lose a border poll held under the 50 percent + 1 rule. However much credit might go to McBride and Kane, their critique is limited and immanent in the sense that it is bound by the parameters of the unionist paradigm. They seem not to grasp fully the fundamentally inegalitarian and sectarian effect of a supermajority—privileging unionist votes and rights over nationalist votes and rights.[15]

Supermajority proposals are not unique to the current constitutional interregnum. They have been around for quite some time. The think tank Democratic Dialogue, for instance, proposed a very undemocratic supermajority of 70 percent as far back as 1997, in the run up to the GFA (Democratic Dialogue, 1997). Bryson’s and Paisley’s dual initiatives are nevertheless cause for concern because they indicate a deepening antidemocratic confluence of hardline loyalism and political unionism (McBride, 2022).

The other main proposal to alter the GFA’s formula for constitutional change—that unionists as a group be given an explicit veto over Irish unity—has evoked much praise from the unionist commentariat, even though its undemocratic and sectarian premises are especially evident. The late Seamus Mallon, former SDLP deputy leader and Deputy First Minister, recently championed this proposal (Mallon, 2019). He resurrects in modern form many earlier calls for a system of unionist privilege over the north’s constitutional status (Crick, 1986; Cadogan Group, 1992; Opsahl Inquiry, 1993; Foster, 1995; Aughey, 1996; Guelke, 1997). He suggests that the GFA be formally amended to require that constitutional change be supported by at least 40 or 50 percent of unionist voters in a border poll. Former UUP leader Mike Nesbitt quickly endorsed Mallon’s amendment. And many unionist academics warmly embraced the proposal, with John Wilson Foster and William Beattie Smith saying it made Mallon a “wise” nationalist (Foster, 2021, p. 87; Smith, 2021, p. 405; Aughey, 2021). Nationalist wisdom, apparently, inheres in the act of supporting unionist privilege, a view recently and emphatically echoed in political scientist Padraig O’Malley’s new book on the Perils and Prospects of a United Ireland (O’Malley, 2023).

Mallon’s idea makes unionist votes the only votes that count in a border poll; it negates completely the ballots cast by nationalists, republicans and other non-unionists (Humphreys, 2021; Burke, 2022). Mallon is at least aware of the grossly unfair effects of his proposal, but he discounts them. Mallon’s unionist cheerleaders seem completely oblivious to the injustices inherent in the proposal; or perhaps they deem them as consistent with their preferred system of unionist privilege and nationalist subordination.

The second morbid symptom follows directly from the first. Attempts to alter the GFA’s 50 percent +1 rule are part of a larger agenda to generalize the unionist veto to encompass multiple sectors of northern political life. The best contemporary example of this politics of privileged disallowance is opposition to the protocol. Unionists and loyalists object to the protocol partly because they believe, mistakenly, that it violates the two conceptions of consent embedded in the Agreement. A core part of the unionist case is: (1) that the protocol breaches the majority consent rule for constitutional change because it alters the north’s constitutional status even though there has been no border poll to demonstrate majority support; and (2) that it ruptures the GFA’s notion of cross-community consent because unionist agreement is not required when the continuation of the protocol comes up for formal Assembly approval in late 2024 (Donaldson, 2021a; Hutchinson, 2021; Trimble, 2021a, 2021b; Bryson, 2022; Young, 2022). The Assembly vote will be decided by a simple majority. If that vote were based on the seats won in the 2022 Assembly election, the protocol would win handily in the face of unanimous opposition from unionist MLAs.

Unionists initiated a series of legal proceedings to uphold their view of the protocol’s incompatibility with the GFA. The north’s High Court and Court of Appeal rejected the unionist position (NIQB 64, 2021; NICA 15, 2022). In February, the UK Supreme Court, in a brief and unanimous decision, also dismissed the case. It ruled that the protocol does not contravene the Agreement’s two conceptions of consent. The majority consent rule does not apply because the protocol does not bring about a change in constitutional status from the UK to a united Ireland, which is the only kind of constitutional change regulated by the GFA and its legal form in the Northern Ireland Act 1998. And the court found that requiring Assembly consent to the protocol to be by majority vote rather than cross-community agreement is compatible with the GFA, as lawfully modified by the 2018 Withdrawal Act (UKSC 5, 2023).

Let’s step back to examine what these first two morbid symptoms say about unionist manoeuvring on the question of consent. Unionists demand that majority consent be redefined to mean unionist consent. They demand that any change they deem as constitutional change be subject to majority (read unionist) consent. And they demand that cross-community consent—that is, unionist consent—apply beyond devolved matters in a way that allows unionists to nullify the protocol, a matter of international relations. Simon Jenkins of The Guardian captures the folly of the DUP’s position on the protocol:

It should be unthinkable that one party should be free to veto not just facets of Britain’s overseas trade policy but, in effect, any improvement in the UK’s absurdly ill-judged dealings with the EU over Brexit. (Jenkins, 2023).

Unionists are in effect attempting to resurrect the overarching antidemocratic veto they once wielded with such calamitous effects. They want the authority to block anything important with which they disagree. They do not share the domineering control they appropriate: nationalists and other groups in the north do not get equivalent powers. Unionist privilege is by design unreciprocated. The numerous unionist references to “cross-community consent” and “cross-community safeguards” are mere dissembling. The nationalist half of “cross-community consent” is entirely abstract and intangible, disappearing the moment it might be made real. In an utterly meaningless gesture, unionism grants nationalists the power to veto only those matters they don’t oppose, like the protocol or Irish unity. Unionism does not offer nationalists a veto over anything they might wish to block, like Brexit or maintenance of the constitutional status quo. Unionist use of the term “cross-community consent” in regard to the protocol and constitutional change is deliberate deceit to mask the discriminatory essence of a unilateral unionist veto.

The anti-protocol campaign can be understood in part as a persistent attempt to enlarge and energize the unionist veto (Feeney, 2023; McClafferty, 2023). Two related developments confirm how ingrained in unionist ideology is this generic and exclusive entitlement to veto. The first is Jeffrey Donaldson’s narrative on the protocol. Donaldson asserts, time and again, that the protocol is “not sustainable” because it’s not acceptable to unionists (Donaldson, 2021b, 2022a). And he goes to the extreme measure of collapsing devolution to force compliance with unionism’s protocol demands. The unionist veto over the operation of the Assembly and Executive will continue, Donaldson reiterates, until the DUP consents to a resolution of the protocol dispute (Donaldson, 2022b, 2022c). In this narrative, sustaining Stormont becomes a continuous exercise in appeasing unionism. The second development is Jamie Bryson and Ethan Thoburn’s recent anti-protocol paper Restoring Northern Ireland’s Place in the Union, written for the Centre for the Union think tank (Bryson & Thoburn, 2023). One major goal of the paper is to entrench further the institutional reach of the unionist veto. The authors refer to the unionist veto—in its beguiling “cross-community” garb—some 38 times in an 84-page report, which is an average of one reference every two pages. The insatiable appetite of their veto devours much: the protocol, devolved government, even parliamentary supremacy—the lynchpin of British constitutional practice. I say more about this paper below.

The third morbid symptom is escalating unionist contempt of the nationalist and republican electorate. Its most recent manifestation is the DUP refusal to serve as Deputy First Minister in an executive with a Sinn Féin First Minister. The largest party in unionism is essentially ignoring the democratic outcome of the 2022 Assembly election. During the campaign, neither the DUP nor the UUP would commit to serving in an executive because the two parties knew it would mean losing voters to the extremist TUV, which vowed never to empower a Sinn Féin First Minister. Jeffrey Donaldson has since said his party would enter the executive, on the condition that the protocol issue is resolved to his satisfaction. Michelle O’Neill, Sinn Féin deputy leader and First Minister in waiting, is sceptical of Donaldson’s new-found commitment to serve. In her speech to the party’s ard fheis in November, O’Neill claimed:

As you all know the DUP are using the Brexit Protocol as cover not to enter power-sharing. And the real reason is because as an Irish nationalist, I will be at the helm as First Minister. And everybody knows it. (O’Neill, 2022).

The protocol is a convenient cover but it’s not just a cover. Rank-and-file unionist opposition to the protocol is sincere if politically misguided, ideologically manipulated, economically reckless and legally groundless. We must also recognize, however, that the protocol protests have a larger aim than just the protocol itself. The sections on the fifth and sixth morbid symptoms—unionist scaremongering and loyalist coercive threats—examine this issue in more detail.

O’Neill is correct to question the extent to which the DUP is capable of relinquishing its contempt for Sinn Féin representatives and their supporters. And many people share her opinion. In a LucidTalk poll of November 2022, over two-thirds of non-unionist voters said they believe that the DUP will never serve in the Deputy First Minister post with a Sinn Féin First Minister. That number rises to almost 80 percent among Sinn Féin voters (LucidTalk, 2022b). Some of these voters surely recall that DUP contempt has deep roots, with the party using various tactics over the years to avoid being seen to support Sinn Féin executive members. The 2006 St Andrews Agreement is one major measure of that contempt. The DUP and Sinn Féin emerged from the 2003 Assembly election as the dominant political parties in their respective blocs. For the first time, the DUP was entitled to take the office of First Minister and Sinn Féin that of Deputy First Minister.[16] The DUP faced a dilemma: it was keen to wield its executive power, if the policing and justice dispute were settled, but could not tolerate having publicly to support a Sinn Féin Deputy First Minister. The St Andrews Agreement produced, among other things, a resolution to the DUP’s particular dilemma. That deal—involving the DUP, Sinn Féin and the two governments—abolished the GFA rule that the First and Deputy First Ministers are elected jointly by a cross-community vote in the Assembly. The new St Andrews rule allowed the two ministers to take office without an affirming Assembly vote, thus enabling the DUP to enter the executive without directly voting for Sinn Féin.

On 8 May 2007, after a new Assembly election mandate, the DUP actually took executive office with a Sinn Féin Deputy First Minister. Eventually, we may see the DUP do the same with a Sinn Féin First Minister. Or we may not. Some commentators wonder if devolution will ever be restored. I think it will. In any case, the unionist challenge to the democratic order goes beyond repeated instances of contempt for the choices made by the nationalist and republican electorate.

Unionist disrespect for the rule of law is the fourth morbid symptom. The protocol protests are once again relevant here. As Justice Richard Humphreys notes: “the incorrect legal theory that the protocol is a breach of the Good Friday Agreement” drives unionism’s political opposition to the protocol. Citing various court rulings, some of them examined above, that show unionism’s legal theory is plainly mistaken, he further notes:

To repeat – unionism is entitled to oppose the protocol ‑ that’s politics ‑ and I am not getting involved in that. But while any political movement is entitled to its own opinions, it isn’t entitled to its own facts; and the fact here unfortunately is that the claim of protocol incompatibility with the agreement is clearly wrong (Humphreys, 2021, p. 8).

The Bryson-Thoburn paper repeatedly asserts that unionism’s political opinions are facts. The authors give a fundamentally deceptive rendition of the Court of Appeal ruling on the protocol. They enlist certain parts of the ruling to buttress unionist claims against the protocol but marginalize other parts that ultimately challenge core unionist positions. They never address the substance of the court’s reasoning against the unionist appellants. They repeat in unadulterated form unionist arguments made prior to the court ruling, as if the adverse parts of the ruling do not exist (Bryson & Thoburn, 2023, pp. 29 & 42-45). And the adverse parts of the ruling are stark: both the majority and concurring judgements dismiss every ground on which unionists base their case (NICA 15, 2022). Bryson and Thoburn will have their own facts about the protocol’s incompatibility with the GFA, judicial rulings be damned.

Unionism, not for the first time, simply ignores court judgements that are contrary to its political ambitions. Unionism rather than the courts is to be the final arbiter of the legal substance of the GFA. The DUP, TUV, Orange Order, and loyalism will decide for everyone what the Agreement means. In any contest over meaning, unionism is invariably right and its opponents always wrong.

An earlier and egregious unionist show of disrespect for the rule of law is worthwhile examining. Its importance was quickly overshadowed by political developments, but it confirms unionism’s entirely self-serving stance towards its legal obligations under the GFA. In a speech in Belfast on 9 September 2021, Donaldson outlined four steps the DUP would take to oppose the protocol. The first step, and the only one I’m concerned with here, is that the party would refuse to operate the GFA’s Strand Two structures by withdrawing from meetings of the North-South Ministerial Council. (Donaldson, 2021b). In October, the High Court found that this step constituted “a policy of DUP Ministers not attending at NSMC meetings and that this is calculated to thwart the operation of that Council” (NIQB 86, 2021, para. 12). The court issued a declaration that the DUP boycott is “unlawful” because it breaches the Northern Ireland Act 1998. The DUP ministers readily conceded that their non-attendance is unlawful. The court also noted that the boycott contravenes the ministers’ Pledge of Office and the Ministerial Code (paras. 38 & 40). Justice Scoffield reminded DUP ministers that they have “obligations to respect the rule of law” (para. 41) and that the court expects them “to comply with their legal obligations” (para. 43).

The DUP continued its unlawful boycott of NSMC meetings in open defiance of the court’s declaration. On 20 December, Justice Scoffield issued a further declaration of unlawfulness (NIQB 120, 2021). He was clearly frustrated:

Almost two months have passed since the court made the earlier declaration in these proceedings. The respondents [DUP ministers] have continued on the course which they conceded was unlawful. A variety of business on matters of cross-border interest has not been able to be progressed in the meantime. That is because Ministers are acting in plain breach of what they know to be their legal obligations to participate in the Strand Two structures (para. 78).

The court’s summary of its rationale for issuing only a further declaration, rather than a mandatory order compelling the ministers to participate in the NSMC, contains a damning indictment of the DUP. The court said it cannot force the ministers to contribute honestly and conscientiously when they are determined to act “without good faith participation in the structures of the NSMC” (para. 73).

The court’s language is direct, robust and highly critical. It repeatedly and forcefully denounces the actions of the DUP. The ministers are in “clear violation of the ministerial obligations which they have assumed” and “are in abject breach of their solemn pledge” to carry out all their ministerial duties in good faith (paras. 81 & 80). The court finds “a wilful failure to exercise the responsibilities of their office” (para. 85). It notes that: “A calculation has apparently been made – which the court deprecates in the strongest possible terms – that respect for the rule of law is outweighed by the political advantage to be secured by the respondents’ boycott of the NSMC” (para. 68). And the court concludes: “it is both profoundly concerning and depressing that the respondents hope to secure political advantage by openly flouting their legal obligations” (para. 83).

This declaration stands as an exceptionally firm judicial rebuke of DUP ministerial action. It quickly got lost in events. Early in January 2022, less than two weeks after the court’s second declaration, Donaldson and First Minister Paul Givan reiterated the DUP’s threat to collapse Stormont if the protocol controversy were not resolved. The party carried out its threat on 4 February: Givan resigned, leading immediately to the shutting down of the Executive and eventually the Assembly. In this circumstance, the party’s admittedly unlawful boycott of NSMC meetings became moot.

The High Court’s two declarations had no impact on the DUP’s determination to subvert the law in pursuit of partisan advantage. On 2 February, just before the party collapsed Stormont, Agriculture Minister Edwin Poots instructed his Department to cease its protocol checks on goods moving from Britain to the north.[17] The court intervened almost immediately, issuing an interim order suspending the implementation of the Minister’s instruction. In December, the High Court ruled that Poots’s instruction was unlawful as it breached his legal obligations under the European Union (Withdrawal) Act 2018. Justice Colton found that the minister’s decision “was an overtly political one, taken for political reasons and as part of the political campaign directed in opposition to the Protocol.” The court noted that “It may well be that for politicians, as the DUP Leader said in September 2021: ‘There are no easy answers when the law requires one thing and politics demands something else’.” But Justice Colton wholeheartedly disagreed with the DUP leader and the Agriculture Minister: “From the court’s perspective there is an easy answer and that is that the law must be obeyed. This is dictated inexorably by the rule of law in every case” (NIKB 34, 2022, paras. 217-219).

The DUP’s political campaign against the protocol—in which it shows serial contempt for its statutory obligations—is an exceedingly dangerous game. Justice Scoffield clearly recognizes the danger in his second declaration on the DUP boycott of NSMC meetings. He connects the DUP’s placing itself above the law to the outbreaks of loyalist violence that occurred at protocol protests throughout 2021:

In recent months there have been – thankfully, sporadic – acts of violence claimed by or attributed to those who, like the respondents, oppose the operation of the Northern Ireland Protocol. These actions have been justly condemned by, amongst others, the respondents’ party leader. ... However, it is incumbent upon those in political leadership to reflect on the example set when they choose to wilfully ignore clear legal obligations to which they are subject. It is not difficult to conceive that condemnation of others’ law-breaking may be less influential when political leaders are themselves content to publicly disregard the law in instances of their own choosing (NIQB 120, 2021, para. 82).[18]

I explore this connection between unionism and anti-protocol violence in examining the final two morbid symptoms.

The fifth morbid symptom is scaremongering, or the use of fear as a means of mobilization to help achieve political ends. The sixth symptom is coercion, which is the use of threats or force to compel submission. Scaremongering and coercion are closely related. Some commentators use the two terms as synonyms. It can be difficult to distinguish between them: they both employ fear as a political weapon and, in practice, are often used together.

UUP leader Doug Beattie withdrawing his party from attending anti-protocol protests is an illustration of scaremongering merging into coercion. He sees anti-protocol rhetoric inciting anger on the streets and fears that violence will ensue: “It is now clear that anti-protocol rallies are being used to raise the temperature in Northern Ireland and adding to tensions that now see a resurgence in UVF activity. The Ulster Unionist Party will not be part of raising tensions or the temperature by bringing people onto the streets with an intent to harness anger” (Deeney, 2022). The Independent Reporting Commission likewise links street disorder “to speculation about the potential for a resurgence of paramilitary activity”, about which it remains “deeply worried” (IRC, 2021, para. 1.15; IRC, 2022). We can revisit and adapt Justice Scoffield’s reasoning as another example of the close association between scaremongering and coercion. Scoffield warns that those who break the law may not be influential in advising others to obey it. It may also happen that those who shamelessly and repeatedly inflame anger may not be influential in persuading others to control their rage.

Scaremongering and coercion can be distinguished though, even if the boundaries between them are occasionally blurred. For the purposes of my analysis—which are to explicate and evaluate unionism’s morbid move to antidemocracy—separating the two is especially useful. Scaremongering and coercion
can be analytically differentiated by their primary purpose and their target audience. The primary purpose of scaremongering is to promote in-group solidarity and action; the primary purpose of coercion to promote out-group disorientation and inaction. Scaremongering uses fear to rouse friends, coercion uses fear to subdue enemies. The former is preparation for battle, the latter compulsion to retreat. As a morbid symptom, scaremongering seeks to frighten unionists and loyalists into mobilizing in support of the union. Coercion’s morbid intent is to demobilize nationalists, republicans and the non-aligned by frightening them from supporting the protocol or in any way questioning the invulnerability of the union.[19] Together scaremongering and coercion are part of a politics of fear that undermines free political expression, rational public debate and unfettered democratic choice.

Let’s take a closer look at scaremongering and its mobilizing intent. Beattie is correct to question the scaremongering tactics employed at anti-protocol rallies. Jeffrey Donaldson, TUV leader Jim Allister, and Jamie Bryson, among others, use inflammatory rhetoric to keep the crowd engaged and ensure that unionists remain angry and energized. For Donaldson: “The stakes could not be higher and the responsibility upon us could not be greater.” “These are difficult times and the scale of our response must match the seriousness of the challenge we face.” The “protocol threatens to provoke the most serious constitutional crisis in Northern Ireland since our formation a century ago.” He enlists the GFA’s consent principle in the campaign against the protocol: “Most fundamentally the constitutional guarantee which has underpinned political progress in Northern Ireland has been fundamentally undermined.” And he asks: “Are we prepared to acquiesce in the undermining of our economic prosperity and the economic and constitutional integrity of the United Kingdom, including the very Act of Union itself?” (Donaldson, 2021b). In a speech to a rally at Dromore, Allister asserts that the protocol’s “constitutional mischief is terminal to the Union. ... Its clear purpose is to build Irish unity through the stepping stone of an all-island economy ... That is why I have always said Unionists either kill the Protocol or it will kill the Union” (Allister, 2022). Bryson similarly employs the extremist language of catastrophe in saying that “Northern Ireland’s constitutional position faces its greatest threat since 1921” and that “the Union is in peril whilst the Protocol remains.” He constructs the protocol as a devious attack on the rights and identity of unionists: it “operates as a deceptive snare which enslaves Unionism within a ‘process’ that is designed to incrementally weaken the fundamental constitutional and culture ties which bind us to the rest of the United Kingdom” (Bryson, 2021).

Some unionist academics also engage in irresponsible scaremongering. The ground was well-prepared by Arthur Aughey some 30 years ago when he fabricated—on spurious evidence and illegitimate extrapolation—an “Irish kulturkampf” or culture war that nationalism wages on unionism (Aughey, 1994). John Wilson Foster and William Beattie Smith till the same field. In their edited volume The Idea of the Union (2021), they warn that in a united Ireland unionists face mass sectarian clearance and extirpation (Burke, 2022). Foster, one of the most relentless academic advocates of unionist privilege and nationalist subordination, points to a republican plot to “swamp unionists,” “cancel unionism,” and arrange unionism’s “elaborate funeral” (Foster, 2022).

In unionism’s multifaceted turn to antidemocracy, apocalyptic premonitions of cultural assault and collective eradication become useful tools that reckless political actors wield to anger and activate the rank and file. Culture war, for instance, has become such a staple of contemporary unionist discourse that some version of it is trotted out at most rallies as a guaranteed means of galvanizing the crowd. It continues to thrive in a discursive space largely beyond the realm of reasonable dialogue.

The sixth and final morbid symptom is coercion, which I defined above as the use of threat or force as a means of making others submit to your will. The most obvious manifestation of coercion is the street disorder that occurred in 2021, which saw rioting, interface tension, petrol bombs, plastic bullets, water cannon and numerous injuries. These disturbances had many catalysts but a recurring theme was that when unionism is dissatisfied—with cultural developments, the policing response to Bobby Storey’s funeral or most importantly the protocol—turbulence ensues. The short message is: keep unionists and loyalists happy, or else. Peter Robinson, reaching for his red beret, is equally brief and menacing in his message to those who oppose unionism: “take care” (Robinson, 2021).

There are many other continuing manifestations of unionist and loyalist coercion, which so far remain mostly at the level of threats of street disorder and violence. Such sabre-rattling usually occurs in the context of unionist opposition to the protocol. But unionism is also sending a larger message, and anti-protocol rhetoric and protest partly function as pre-match warm-ups for a much bigger game. The ultimate aim is to stop Irish unity. At the Ballymoney anti-protocol rally in March 2022, former Brexit Party MEP Ben Habib warned that the south “has its covetous eyes on Northern Ireland.” Addressing the same crowd, Jim Allister called the protocol the thin edge of the wedge “intended to create an all-Ireland state.” And Jamie Bryson noted that any move to Irish unity would be met with fierce resistance. He used the rally to send a message to the Irish government: “you will never take Ulster. We will never be your subjects, we will never exist meekly in a united Ireland, economic or otherwise, and most of all we will not tolerate the imposition of a protocol, or the continuation of a process which is designed to dismantle and destroy the union that our forefathers fought and died to defend” (Moriarty, 2022) Bryson often employs threats to dampen nationalist and republican constitutional aspirations, warning that “civil war” will accompany any tangible steps towards a united Ireland (Haverty, 2020; Cahill, 2022).

The rejuvenated appearance of the UVF, UDA and Red Hand Commando—in the form of the Loyalist Communities Council—adds to the atmosphere of threat that is becoming a salient feature of the anti-protocol movement. In a letter to PM Boris Johnson in March 2021, LCC chair David Campbell withdrew loyalist support for the Good Friday Agreement because of the protocol, and advised that the loyalist ceasefire is in jeopardy (Campbell, 2021). In a letter to unionist party leaders in October 2022, he threatened that any move to joint authority would have “dire consequences” for the ceasefire. He also demanded that the Irish government not visit the north while the protocol is in place. And he singled out Irish ministers Leo Varadkar and Simon Coveney for being especially offensive to loyalists (Campbell, 2022). These letters came at a time when both ministers were under constant threat from shadowy loyalist figures, with a foiled hoax bomb attack in March at a peace event Coveney was to address. In February 2023, with fevered speculation about an imminent deal on the protocol, Campbell reiterated his threat that failure to satisfy loyalism puts the ceasefire in doubt (Kula, 2023).

The LCC asserts its commitment to peace as a way of enhancing an atmosphere of danger and threat. Campbell’s first letter states that “The LCC leadership is determined that unionist opposition to the Protocol should be peaceful and democratic” (Campbell, 2021). His second letter affirms that: “All our activists are working tirelessly within local communities to restrain loyalists from lashing out in unproductive ways.” But it also warns that the continuation of the protocol and any imposition of joint authority mean that activists “would be powerless to prevent an unprecedented reaction” (Campbell, 2022). The LCC’s stratagem is transparent. Professing to be helpless to prevent the very kind of reaction that the LCC’s threats could provoke is one way of enhancing the effectiveness of the initial threats. The LCC’s ominous logic seems to be: if even the community workers of the UVF, UDA and Red Hand Commando may not be able to control the forces of coercion that are let loose, then political opponents better listen and succumb to loyalist demands. These kinds of maneuvers are also useful politically. Should opponents not succumb and tensions escalate to the point of real trouble, the LCC can point to a paper trail showing that it directly counselled peaceful activity. That is, such tactics prepare the ground for a political escape for the recklessness of the anti-protocol campaign.

The campaign’s end game is relevant here too. As Belfast Telegraph journalist Suzanne Breen says: “If the UVF, UDA and Red Hand Commando are agitated now, then just wait and watch their reaction when a secretary of state heads in the direction of calling a border poll” (Breen, 2022). In this instance, however unlikely it might be, we would expect escalating threats from the LCC chair and find that LCC activists once again claiming to be powerless in deterring their community from lashing out in unproductive ways, this time at a democratic attempt to effect lawful constitutional change. The threats and abuse directed at Queen’s academic Colin Harvey—a prominent advocate of reunification and board member of Ireland’s Future—and actor James Nesbitt—who delivered a keynote speech on a “new union of Ireland” at an Ireland’s Future rally—can be understood in the context of the close link between anti-protocol and anti-unity uproar (Ainsworth, 2022; Breslin, 2022).

Political unionism, like the LCC, uses the language of peace as an instrument of coercion. Donaldson and Allister explicitly warn that peace is at risk. In their joint article in the Irish Times in September 2021, they noted that unionists are justifiably fearful and angry:

It is little wonder that there has been civic unrest in Northern Ireland ... The reason why the unrest has not spilled over into greater disorder is due to the work which we, our parties and community workers have been doing to prevent it. (Donaldson & Allister, 2021).

In this fabricated anti-protocol world, political unionism and the LCC are not the purveyors of fear, anger and unrest; they become instead the bulwark against impending trouble and therefore the key to peaceful resolution. Political stability and social order require that London, Dublin, the EU, nationalism and the non-aligned embrace unionism’s position on the protocol.

Small groups committed to physical force can cause considerable damage, but unionist talk of “civil war” and warnings of a return to pre-ceasefire levels of loyalist violence are wildly disproportionate. One obvious reason is that loyalist paramilitaries would not be able to count on the same level of covert British support that proved so central to sustaining their earlier campaign of sectarian murder (Smith, 2022). Even with gently rising levels of Protestant discontent and expectedly sharper increases of disillusionment among DUP supporters, there is nothing to suggest that the continuation of the protocol or a move to Irish unity would be a catalyst for widespread civil disorder or political violence (Garry & O’Leary, 2022). There will undoubtedly be some political grief. Unionism’s antipathy to basic democratic principles will prove troublesome in a united Ireland (should it ever arrive), just as it has caused problems over the century of partition. Jamie Bryson is in this sense correct: elements of unionist ideology are fundamentally incompatible with democracy. In all likelihood, though, any political grief will be circumscribed and expressed mostly through non-violent means. And a reasonable public policy package of incentives and disincentives should be able to manage, with some bumps, unionism’s antidemocratic tendencies. Proponents of the union and their allies want you to believe otherwise—that unionist unhappiness is a problem so severe, extensive and intractable that you must submit—in the expectation that you will in fact, out of fear, adjust your attitudes and behaviour. That’s how coercive threats work. That’s how bullies operate.

Reinvigorating Morbidity: The Windsor Framework

The Windsor Framework, the protocol agreement reached between the UK and European Commission in late February, compels some kind of assessment of the effectiveness of unionism’s anti-protocol campaign. This assessment must necessarily be preliminary as the details and legal texts of the complex deal are not yet finalized. The unfortunate reappearance of “constructive ambiguity”—in which the main political actors make contradictory claims about what the deal entails—further complicates a firm assessment (Emerson, 2023). For two reasons, I’ll concentrate my remarks on the so-called Stormont Brake. First, the British government regards the Brake as “the most significant part” of the deal; it is a “core” or “central” element that stands “at the heart of the Windsor Framework” (Maidment, 2021; UK Government, 2023c, paras. 2.1, 6.2 & 7.1). That the Brake was the only aspect of the intricate deal that the British government submitted to a parliamentary vote also indicates its centrality, although the government considered that vote an assessment of the Framework as a whole. On 22 March, the House of Commons overwhelmingly approved the Brake by a vote of 515 to 29. Second, focusing on the Brake is appropriate because it is the one part of the Framework that is unequivocally a direct response to unionism’s oppositional campaign. The Brake was created with the help of the DUP, even though the party later voted against it in the House (Manley, 2023b). The trade-related features of the Windsor Framework are mostly practicable resolutions to problems encountered in the actual operation of the protocol, and they, or something like them, could have been arrived at much earlier had the British government negotiated in good faith. Business, trader and consumer experience with the protocol, not unionism’s fanciful ideological objections to it, largely explains why these elements are included in the Framework. But the Stormont Brake is there solely because of unionism’s anti-protocol campaign.

The term “Stormont Brake” is a flagrant misnomer. The invention and continued use of the term undermine the credibility of the UK and EU. The Stormont Brake is actually a unionist or DUP Brake, devised specifically to meet unionism’s demand for a community veto over operation of the protocol. No non-unionist party wants or demands such a veto. While theoretically available to all Assembly parties, the Brake will—practically and politically—be applied by unionist MLAs led by the DUP.[20]

The Brake is a mechanism that allows 30 MLAs from two or more political parties to request that the British government veto the application of an amended or replaced EU law. Under the old rules of the protocol, such laws would have automatically applied to the north. The Brake is modelled on the GFA’s petition of concern as revised by the New Decade, New Approach deal of 2020.[21] The Brake process requires that the Executive is restored and that the MLAs wishing to apply the Brake are operating the institutions in good faith. Those MLAs must also engage in a series of consultations and must show that:

the Brake mechanism is being used “in the most exceptional circumstances and as a last resort, having used every other available mechanism.”
the amended or replaced law subject to the Brake “significantly differs” from the original law.
the amended or replaced law “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist” (Joint Committee, 2023, pp. 23 & 4).

Triggering the Brake immediately suspends the EU law from applying to the north. The British government will in turn permanently veto the law unless (1) there is a cross-community vote in the Assembly supporting the law, (2) there are exceptional circumstances that justify not vetoing it, or (3) the law does not create a new regulatory border between Britain and the north. This presumptive British veto with the same three conditions, including cross-community (unionist) consent, also applies to new EU law—not just amended or replaced law—that might be added to the protocol.[22]

In brief, through the Brake and accompanying cross-community Assembly votes, unionism has the potential capacity, against all other Assembly comers, to block the application of additional EU provisions.[23] The “unthinkable” appears to have happened, with apologies to Simon Jenkins.

Confusion abounds regarding how or if the Brake will actually work. The UK and EU positions are in many ways directly contradictory, or should I say “constructively ambiguous”. Legal commentator David Allen Green captures the discrepant positions in asking if the Brake is an instrument that can actually be used for the stated purpose, or an ornament that is almost impossible to apply (Green, 2023). The UK sees the Brake as an instrument that is an available and potent weapon—“an unequivocal veto”—to block the application of additional EU law and limit the jurisdiction of the European court (Prime Minister and Minister for the Union, 2023, para. 63). It is “the most significant part” of the deal for the very reason it will be effectively employed. The EU, in contrast, views the Brake as an ornament of limited scope with so many strict conditions attached to its use that it will rarely if ever be triggered (European Commission, 2023a; Madden, 2023).

The divergent marketing strategies to sell the Brake to UK and European publics confirm the tension between the instrumental and ornamental interpretations. The British Command Paper describing the deal frames the Brake as an important element in addressing the democratic deficit. The Brake is “a powerful new democratic safeguard” that gives restored Stormont institutions “a genuine and powerful role in the decision on whether or not significant new goods rules impacting on everyday life in Northern Ireland should apply” (Prime Minister and Minister for the Union, 2023, para. 61). This rendition assumes that the Brake will be regularly applied in meaningful exercises of democratic consent. The EU’s memorandum situates the Brake very differently. It sees the Brake as a “new emergency mechanism” (European Commission, 2023a). In this view, the Brake is primarily a trade-related measure to be used in extremely rare and closely circumscribed contexts; it is not a democratic safeguard to be deployed in recurring affirmations of Stormont control. The EU does not in fact associate the Brake with expanding democracy. Its discussion of “stakeholder engagement”—in which it describes a series of new and enhanced measures to involve the people and businesses of the north in the implementation of the protocol—is entirely separate from its analysis of the Brake.[24]

We don’t yet know if the Brake will prove to be an instrument or an ornament. The UK and EU have nevertheless made a grave mistake in incorporating the measure in the Windsor Framework. And this mistake remains whether or not Jeffrey Donaldson decides that his party will reenter government. The sudden and unexpected appearance of the Brake allows the DUP and its unionist allies to proclaim a partial but significant victory for its anti-protocol agitation. The Brake appears solely because unionism demanded veto power over the protocol. In a sense, unionism invented the idea of the Brake as part of its embarrassingly unsuccessful legal proceedings against the protocol. The Windsor Framework, by legitimizing the Brake, transforms that resounding legal defeat into an emphatic political victory. The Supreme Court killed the unionist attempt to manufacture a veto over the protocol; the UK and EU resurrect that veto in a new form. The Windsor Framework essentially grants unionism what the Supreme Court did not: a unilateral path to limit the reach of the protocol.

The Brake reveals much about the UK’s strategy in its protocol talks with the EU. The principal drivers of London’s overall approach include the Tory government’s need to manage its internal turmoil and electoral ambitions. They also include Prime Minister Sunak’s wish to establish better relations with Europe and the United States, to advance other trading relationships and to repair some of Brexit’s economic damage. But a northern logic is also discernible in the British government’s approach. That logic privileges unionist concerns. Two weeks after the Assembly election of May 2022, British Foreign Secretary Liz Truss encouraged the DUP to maintain its boycott of Stormont until the protocol is satisfactorily changed.[25] Britain’s foregrounding of unionist interests was still apparent nine months later when James Cleverly, Truss’s successor as Foreign Secretary, confirmed that there would be no deal with the EU until DUP demands about sovereignty and democratic control were addressed (Blewett, 2023). The Brake itself shows a British government that is as acutely attuned to unionist demands as it is profoundly deaf to non-unionist concerns. The UK’s framing of the Brake as a democratic safeguard that protects British sovereignty is an obvious sop to the DUP to entice the party to end its boycott of devolved institutions (Maidment, 2023). The British approach abandons even the appearance of impartiality and fairness in its dealing with northern parties. Non-unionist sensitivities, when London mentions them at all, appear as an afterthought. The EU too, though less obviously than the UK, is directly implicated in elevating unionism above other northern interests. By agreeing the Brake, the EU has enmeshed itself in the unproductive politics of placating unionism.

And unionism is placated, to an extent. Diverse sections of unionism view the Framework as a meaningful if incomplete win.[26] Donaldson acknowledges “significant progress”, although he identifies key areas of concern that still need to be addressed (Donaldson, 2023a & 2023b). In refusing to endorse the Framework, Bryson does see “significant, and at one time unthinkable, progress” (Bryson, 2023a). Thoburn and others from the Centre for the Union think tank similarly cannot recommend the Framework to unionists but believe it represents “a significant step forward” that could, with appropriate amendments, “provide the basis of a resolution” (Thoburn et al., 2023, paras. 6 & 47).

More important than these claims of a bounded victory is that unionism specifically identifies its anti-protocol campaign as the primary reason progress has been made. Many unionist believe that the Framework “vindicates” their entire campaign, including all the morbid parts discussed above. For Donaldson: “Our judgement and our principled position in opposing the Protocol in Parliament and at Stormont has been vindicated” (Donaldson, 2023b). That is, pulling down the devolved institutions and ignoring the democratic outcome of the 2022 Assembly election actually worked. The Orange Order reasons that the welcome adjustments to the protocol “were brought about as a result of Unionism’s determined and united opposition to its implementation” (Grand Orange Lodge of Ireland, 2023). Bryson argues: “In the absence of the campaign driven by the grassroots unionist/loyalist community, which drove the political leadership of unionism to take action, then we would not be this far forward in our shared objective of restoring Northern Ireland’s place in the Union” (Bryson, 2023a). The Centre for the Union is equally elated by the success of the anti-protocol campaign:

... the position of unionism has been roundly vindicated. ... The campaign of peaceful protest, legal action in our courts (up to and including the Supreme Court), the actions of political unionism in uniting behind a shared position of unalterable opposition to the Protocol and ultimately the actions of the DUP in firstly collapsing North-South institutions, then ordering a halt to checks, and finally in resigning the then First Minister from office collectively forced the EU and UK Government back to the negotiating table (Thoburn et al., 2023, paras. 18 & 19).

Recall that the campaign of “peaceful protest” featured the irresponsible exploitation of communal fear, open displays of loyalist paramilitarism and the use of menacing language.

Thanks to the UK and EU, antidemocratic practices are now firmly re-embedded in unionism’s expanded and legitimized repertoire of action. The political means available to unionism—battle-tested in the heat of opposition to the protocol—include discriminatory comprehensive vetoes, blanket dismissal of the democratically expressed views of others, refusal to abide by GFA and other legal obligations, haughty dismissal of court declarations, ceding ideological leadership to extremist elements, scaremongering and coercive threats. This repertoire is also newly rejuvenated for unionism’s ongoing campaign against Irish unity, a constant preoccupation of the anti-protocol movement.

The UK and EU have given new life to antidemocracy in the north. There will be debilitating consequences. The Brake is a useful illustration of the general problems associated with the questionable politics of the Windsor Framework. If the Brake is an instrument—if it works—we can expect it will be applied as frequently as possible. Anyone familiar with the petition of concern mechanism on which the Brake is based and with the DUP’s disproportionate abuse of that mechanism understands that the Brake will be used to thwart majority opinion in the Assembly. And this sidelining of what will probably be a large democratic majority will occur in the name of an extremist ideological tendency that equates the mere whiff of EU law with a fundamental threat to the very survival of the union and unionism. The effects of constantly pumping the Brake will be disruption in the operation of the protocol, increasing divergence between the north and Europe, multiple problems in north-south relations, remedial measures by the EU, and heightened partisan polarization. In short, economic turbulence and political turmoil. If the brake is merely an ornament—if it doesn’t work—we can expect unionism to reignite all the morbid elements of its anti-protocol campaign in a new effort unilaterally to determine the direction of northern politics. Economic and political disarray once more.

Unionism’s current position on the Framework provides a glimpse of what’s to come. Emboldened by the “significant progress” that the anti-protocol campaign has extracted so far, diverse sections of unionism want more. Donaldson, Allister, Bryson, the Centre for the Union, the LCC and the Orange Order call for additional and fundamental changes to the Framework.[27] Donaldson, for instance, wants the Brake to be a formidable instrument, not a mere ornament. In effect, he continues to seek to undermine the protocol.

Donaldson is also heartened by Britain’s adoption of unionism’s democratic narrative on the protocol. And he throws that narrative back at the British government to defend his demand for more concessions to unionism:

There is no doubt it is vital that the Northern Ireland Assembly must have at its disposal democratic mechanisms that are effective in law and which underscore the role of the locally elected representatives of the people of Northern Ireland to determine whether amended or new laws are implemented.

Notwithstanding the issues and conditions which have to be met to make the brake work it remains the case that the “brake” is not designed for, and therefore cannot apply, to the EU law which is already in place and for which no consent has been given for its application.

Whilst representing real progress the “brake” does not deal with the fundamental issue which is the imposition of EU law by the Protocol (Donaldson, 2023c).

The manifest falsity of this narrative of democracy and consent is irrelevant to unionism. Democracy for the DUP is in this case a public relations exercise to justify unionist privilege. The party cares little for what non-unionists think. Unionist opinion must reign supreme over the settled democratic will of Stormont, with an enhanced unionist veto serving as the instrument of that supremacy. Donaldson is not demanding simply that locally elected representatives of the people determine the scope of the protocol; he is demanding that unionist representatives—on their own and against the wishes of all other representatives—determine such matters. His appeal to the British government can be summarized as follows: if the UK has already agreed that democracy, defined as unionist entitlement to a veto, is to apply to amended or new EU laws as the Framework suggests, then surely London will agree that it must also apply to all EU laws currently in place. In other words, Donaldson pushes for a comprehensive, unilateral and discriminatory unionist veto—a morbid, antidemocratic practice—and speciously justifies his demand in the language of democracy.[28]

The inequitable politics of the Windsor Framework, evident in the UK’s and EU’s official deference to unionism’s demand for superordinate rights, guarantees further cycles of unceasing unionist obstinance, impasse, breakdown, crisis and temporary fix.

In agreeing the Brake, Britain and Europe have responded to unionism’s anti-protocol campaign more decisively and generously than have the people of the north. London and Brussels have in important ways capitulated in the face of unionist petulance and aggression. The people generally have not. Considerations of space prevent me from thoroughly examining the popular response to unionism’s anti-protocol campaign, but a few brief comments are in order.

Scaremongering has not effectively mobilized the unionist constituency. The crowds at anti-protocol rallies have generally been disappointingly small and the rallies themselves have subsided. To be sure, most unionists remain opposed to the protocol and Windsor Framework, which can be seen as a partial victory for the anti-protocol campaign. But unionist opinion is volatile, with a softening then hardening of attitudes in favour of the DUP’s continued boycott of Stormont (Breen, 2023; White, 2023).

Coercion has not worked. Opinion polling demonstrates that the anti-protocol campaign’s threats failed to intimidate the non-unionist population. That population remains highly critical of Brexit and is strongly supportive of the practical measures in the Framework deal and heavily in favour of the DUP returning to Stormont (Phinnemore, Hayward & Whitten, 2023; LucidTalk, 2023). Some non-unionist leaders are, however, especially worried about what the Brake might mean for the future stability of northern politics, a view partly reinforced by the latest Irish News-University of Liverpool poll (Alliance Party, 2023; Manley, 2023a; SDLP, 2023; McGonagle, 2023).

Nationalists and “others” have also not allowed unionism’s menacing language to disorient or demobilize them on the question of the north’s constitutional future. The data analysis in Figures 2 and 3 above shows that, generally, support for unity has increased and support for union decreased since the Brexit controversy arose. Figures 4 and 5 demonstrate that leaving the European Union has made people feel more favourably disposed towards a united Ireland. The comprehensive shock of Brexit appears to have overwhelmed all the virulently anti-unification rhetoric of protocol rallies. But the failure of unionism’s campaign of coercion is even more decisive than the data analysis so far suggests. Coercive threats have not done what they are specifically designed to do: frighten non-unionists from supporting a united Ireland. Further examination of NILT data shows that, since Brexit, support for Irish unity has grown among diverse groups of nationalists and the non-aligned, including people who identify as “nationalist”, supporters of nationalist parties, Catholics, those with an Irish identity, Alliance voters, people who say they are “neither” nationalist nor unionist, those with no religion, and people with a Northern Irish identity.[29]

Conclusion

The crisis of democratic legitimacy consists firstly in the north’s state of constitutional limbo: neither the north’s current status as part of the UK nor the alternative status as part of a united Ireland commands majority support among the populace. On its own, the lack of strong support for British sovereignty justifies a robust partnership role for the Irish government in the affairs of the north. The terms of the GFA and St Andrews Agreement and the absence of devolved governance also point to meaningful Dublin input. We have seen that anything remotely touching on unionism’s exalted sense of itself—be it involvement of the Irish government in northern affairs via the GFA, an enlivened discussion of Irish unity, or EU intervention through the protocol—intensifies the second, morbid part of the north’s crisis of democratic legitimacy. Influential sections of unionism have never accepted and do not now accept the legitimacy of a democratic resolution to the north’s sovereign status. Unionism increasingly rejects the democratic processes set out in the GFA and shirks its attendant legal obligations. It opposes any green-tinged deviation from unfettered direct rule. It wants the power to block, on its own, Irish unity. It seeks to determine unilaterally crucial questions of international relations like the protocol.

Democracy suggests that unionism cannot and should not have what it demands. In relentless pursuit of those demands, sections of unionism move further away from democracy. Not all unionists share this disdain for democracy, but their voices are lost in the current celebration of unrequited privilege.[30] The dominant elements within unionism will continue to try to expand their discriminatory veto power and will persist in playing the politics of fear through irresponsible rhetoric, menacing ultimatums and direct threats.

Nationalists, republicans and democrats must develop concrete strategies for dealing with such morbid symptoms. My analysis points to the need for confronting directly the appearance of antidemocratic tendencies in this interregnum of constitutional uncertainty. As a general principle, strategies would fairly accommodate reasonable unionist concerns but not give in to antidemocracy. They would, that is, not repeat the mistakes of the UK and EU.

Notes

[1] I also understand that the Northern Ireland Office and the courts have undermined the democratic ratification of the GFA by refashioning the rules of constitutional change, ensuring that the Agreement obstructs Irish unity. In this paper, I am working for the most part with the fair, reasonable and popularly understood meaning of the GFA’s notion of constitutional consent, not with the bowdlerized meaning imposed post hoc by the NIO and courts in the McCord case (Burke, 2020). The holding of a border poll may require that advocates of Irish unity overcome this latter meaning and restore the original intent of the Agreement’s consent provisions: that the emergence of a likely majority for unity triggers a poll. In the section on “constitutional limbo,” I do mention briefly the view of the NIO and courts, but just to establish that a border poll may never be held. In the section on “morbid symptoms,” I examine favourably the court’s constitutional reasoning on a different aspect of consent in the Allister et al. case.

[2] The poll is “a collaboration between the Irish Times and ARINS [Analysing and Researching Ireland, North and South], which is a joint research project of the Royal Irish Academy and the Keough-Naughton Centre for Irish Studies at the University of Notre Dame” (Leahy, 2022a). John Doyle, Cathy Gormley-Heenan and Patrick Griffin (2021) give a complete description of the aims and research programme of the ARINS project.

[3] All direct quotations without page or paragraph numbers are from internet documents that do not use a numbering system. Otherwise, I indicate the page or paragraph number of direct quotations.

[4] Colin Harvey is one of the few to draw attention, however briefly, to the tenuous democratic foundations of the north. Commenting on the 2020 poll by the Detail and LucidTalk, which showed 47 percent support for union and 45 percent support for unity, he points out: “it increasingly looks like support for the current constitutional arrangements is on a knife-edge.” The poll “shakes the legitimacy of the foundations of the existing constitutional order” (Harvey, 2020).

[5] The NILT is an annual survey set up in 1998 by Queen’s University Belfast and Ulster University that examines the attitudes and behaviours of people in the north on various social, political and constitutional issues. Its sampling design produces a representative sample of adults aged 18 years or over (NILT, 2021a). Because of the pandemic, the NILT suspended face-to-face interviews after the 2019 survey. The 2020 and 2021 surveys use online questionnaires that present the full range of response options to respondents, including “I don’t know”. This is a different format from that used in prior years (NILT, 2021b).

[6] The NILT defines “refused”, “no answer” and “prefer not to say” as invalid responses or missing data, and these responses are excluded from the calculation of the percentages. Only 7 responses are “missing data” on long-term preference and 10 on vote tomorrow, so their exclusion does not materially affect the magnitude or interpretation of percentages.

[7] Technically, we should say that we are 95 percent confident that the interval 45.1 to 50.3 includes the population (true) value.

[8] The ARINS-Irish Times poll’s finding that 50 percent of northern respondents would support the union in a referendum, 27 percent would back Irish unity and 23 percent don’t know how they would vote or would not vote is not as anomalous as newspaper coverage suggests. Pro-union sentiment and don’t know responses may have increased a little and pro-unity sentiment declined, but overall the results are in line with the Figure 1 data on the vote tomorrow question, especially if we take into account each poll’s margin of error.

[9] From 1998 to 2006, the percentage of respondents saying “union” refers to those who say that they think the long-term policy for the north should be for it “to remain part of the United Kingdom.” The question on long-term constitutional preference did not distinguish between “remain with direct rule” and “remain with devolved government” until the 2007 survey. I have argued elsewhere that the rise in support for union and fall in support for unity starting in 2007 are largely artefacts of the NILT’s introduction of this new and biased question (Burke, 2021a).

[10] Since the biased question introduced in 2007 began systematically to underestimate support for Irish unity.

[11] That is, support for union trends downward in recent years, although not as steeply as in Figure 2, and unity trends upward. One noticeable difference is that “other” trends a little downward from 2017 to 2021. The NILT has a restricted time series on these measures as they appear only in 2002, 2005, 2006, 2017 and 2019-2021. And the series is actually made up of three different questions or measures: REFUNIFY in 2002 and 2019-2021, FUTURENI in 2005 and 2006, and BORDPOLL in 2017. FUTURENI does not ask about voting in a referendum tomorrow but simply gives respondents a list of constitutional options and asks them which comes closest to their view. The exact wording of each question is available from NILT’s website (NILT, 2021c).

[12] John Garry and others found that the potential form of an eventual Brexit had a substantial impact on constitutional preferences, with a “hard” Brexit increasing Catholic support for reunification (Garry et al., 2018 & 2020).

[13] Protestants always interpreted majority consent as a constitutional guarantee that Britain gave to them as Protestants or unionists. In this view, majority consent is a group entitlement, not a democratic right. Protestant or unionist support for the majority consent clause did not stem from democratic beliefs. As long as unionists were the majority in the north, group entitlement could be easily mistaken for or presented as democratic right. With unionists in the minority, this conflation is no longer possible, and unionists have moved towards arguing for a unionist-specific entitlement to veto over constitutional change. In any event, morbidity is evident in unionists shedding even the pretense of democratic justification for the north’s place in the union and developing antidemocratic rationales for maintenance of the constitutional status quo.

[14] There are also proposals to change the GFA’s threshold obliging the Secretary of State to call a border poll, which he “must” do if he believes that a majority of those voting in the poll would support Irish unity. As I say in the body of the paper, the NIO and courts have already undermined this threshold. Some commentators nevertheless advocate that unionists be given a veto over the Secretary of State’s triggering of a poll. Padraig O’ Malley, for instance, argues that the Secretary of State should make it clear “that opinion polls on unity will not be a criterion [for calling a border poll] unless it emerges that they provide unequivocal support for unity, including a significant element in the unionist community over a sustained period” (O’Malley, 2023, p. 108). The critique I make of proposals to change the threshold for winning a border poll also applies generally to proposals like O’Malley’s to change the threshold for triggering a poll. There is consequently no need for a separate analysis of the triggering proposals. O’Malley’s work is, by the way, an excellent if depressing illustration of the countermobilization against Irish unity. He invents so many new conditions for a united Ireland—conditions he knows will never be met—that he eliminates any possibility of Irish unity (Rooney, 2023). His expectation that “we are probably looking at a border poll in 2032 at the earliest” is entirely inconsistent with the thrust of much of his analysis, which is forever to forestall such a poll (p. 356). There is, for example, no possibility that “a significant element in the unionist community” will support Irish unity by 2032 and therefore, according to his argument, the Secretary of State should not call a poll at that time.

[15] Andy Pollak (2022) recently changed his mind about supporting a supermajority threshold for constitutional change because he recognizes (finally) how such a threshold systematically privileges unionists and disadvantages nationalists.

[16] Sinn Féin had actually surpassed the SDLP in the 2001 Westminster election to become the largest nationalist party, but this outcome had no effect on party eligibility for office in the Stormont executive.

[17] Poots’s action was in line with the second of the four anti-protocol steps outlined by Donaldson in September 2021 (Donaldson, 2021b).

[18] Humphreys (2021), like the court, is concerned with the trickle-down effect of anti-protocol tactics on fringe elements within loyalism.

[19] I reiterate that this distinction can break down and that conceptual limits are not clearly demarcated. Scaremongering, for instance, can be directed towards enemies and coercion deployed against “friends” or partners. Scaremongering can also blend into coercion, as suggested in the text: if scaremongering produces crowds of enraged unionists on the streets, nationalists may well begin to fear for their safety and make adjustments in their political attitudes and behaviours. In my schema, this effect on nationalists—however intended, real or severe it might be—is an indirect consequence produced through scaremongering’s direct aim of unionist mobilization. The complete causal chain—where the arrows can be read as “influences” or “shapes”—can be depicted as follow: scaremongering --> unionist mobilization --> coercive threats --> nationalist attitudes and behaviours.

[20] The Belfast Telegraph’s coverage of the Windsor Framework exemplifies how the term Stormont Brake promotes confusion. Sam McBride (2023a) refers to the Secretary of State’s comment that the Brake is de facto available to both unionism and nationalism. Niamh Campbell (2023b) suggests otherwise. She illustrates how the Brake will work in practice by supposing there is “a new EU law that the DUP wants to veto.” Campbell is correct, the Secretary of State and McBride are not. The Brake is a tool designed for unionist use and, in all probability, it will be used exclusively by unionists.

[21] The EU explains that: “The brake can be used for amendments to or replacements of a subset of acts listed in the Protocol, not to all acts” (European Commission, 2023a). Petitions of concern allow 30 MLAs to petition the Assembly to require a matter to be passed with cross-community consent rather than by simple majority vote. Between 2011 and 2016, DUP members signed 86 petitions of concern; Sinn Féin and SDLP members signed 29 petitions each. In these years, the petition of concern was used for purposes beyond its original intent of protecting specific community interests, minority rights and group equality. Petitions have been lodged, for instance, to block same-sex marriage, welfare reform and sanctions against individual MLAs accused of misconduct (Schwartz, 2015; Smyth, 2016). Ongoing attempts to reform the petition of concern mechanism have failed, until recently. In the New Decade, New Approach Agreement (NDNA) of January 2020, the parties agreed various measures to curtail the use of petitions of concern. No petitions have been lodged since monitoring began in 2020 in the wake of the NDNA. For the latest monitoring report on the use of petitions of concern, see Secretary of State (2022).

[22] The complex bevy of documents describing the Windsor Framework makes an important but confusing distinction between a “new EU act” (or law) and a “replacement EU act” that amends or replaces an existing EU provision. Under the old rules, amended or replaced EU laws were automatically added to the protocol and new EU laws could be vetoed by the UK. Under the Framework, replacement laws are subject to the Brake mechanism and to formal cross-community (unionist) approval in the Assembly; new laws are not subject to the Brake but nevertheless must receive cross-community consent. In the middle of the Brake process, the distinction between new EU law and replacement EU law is effaced. Once the British government notifies the EU that the Brake has been pulled, the UK-EU Joint Committee considers the amended or replaced law to which the Brake has been applied as a new law that the EU wishes to add to the protocol. The following four documents detail the operation of the Brake: the Withdrawal Agreement Joint Committee decision on the Windsor Framework (Joint Committee, 2023), the British government’s Command Paper (Prime Minister and Minister for the Union, 2023), the Windsor Framework (Democratic Scrutiny) Regulations 2023 (UK Government, 2023b) and the Explanatory Memorandum accompanying the regulations (UK Government, 2023c).

[23] Jamie Bryson (2023b) is wrong to say that the Brake gives no veto to unionism or the British Government. It does, so long as Britain complies with the agreed conditions for using the Brake. It remains to be seen just how stringent or flexible those conditions will be.

[24] The separation breaks down somewhat in the EU’s press release announcing the deal. The press release discusses together the new stakeholder arrangements and the Brake. I presume this conflation is partly the result of the condensed format of the press release. In any event, the press release does contrast the regularity of the stakeholder measures with the rarity of the Brake mechanism (European Commission, 2023b).

[25] In a parliamentary statement on 17 May 2022, Truss announced what would become the Northern Ireland Protocol Bill, which signalled London’s intention unilaterally to alter parts of the protocol if no agreement with Europe could be reached (Foreign, Commonwealth & Development Office, 2022; Whysall, 2022). As part of the Windsor Framework deal, the British government agreed to drop the Protocol Bill (UK Government, 2023a).

[26] Allister (2023a & 2023b) is so far alone among unionists in not seeing anything positive in the deal. The British Conservative Party’s European Research Group sees some “limited easings” in the customs and regulatory requirements but otherwise is strongly negative about the Framework. As an example, it says the Brake “is likely to be useless in practice” (Howarth, 2023).

[27] I address Donaldson’s position in the text. For the positions set out by other unionists see Allister (2023b), Bryson (2023a), the Centre for the Union (Thoburn et al., 2023), Bradfield (2023) and the Grand Orange Lodge of Ireland (2023).

[28] Donaldson, like Bryson and Thoburn, constantly hides the unionist veto behind the misleading phrases of “consensus” and “cross-community consensus” (Donaldson, 2023d). DUP MP Gregory Campbell is equally dissembling. In a statement admonishing the Secretary of State for not coming to terms with reality, Campbell brazenly masks the reality of a unionist veto with soft phrases about “cross community political consensus” (Campbell, 2023a). In hiding the veto, these political actors are also hiding the rationale for the veto. The kind of veto they propose can be justified only from a premise of unionist supremacy, a kind of argument they seem reluctant to make, at least openly and directly.

[29] We can’t know if the unionist campaign of intimidation may have slowed down the growth in favour of Irish unity among these groups. Perhaps, in the absence of that campaign, the rise in support for unity would have been steeper. But the strong upward trends are in and of themselves testimony to the overall ineffectiveness of unionist coercion.

[30] The Northern Ireland Development Group (2023) recently published a discussion document that sets out an alternative unionist vision for a better future, albeit in highly abstract and general terms. Its vision could not be more different from the morbid tendencies I examine here.

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⏮ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.

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