Newton Emerson: DUP Tory deal will make NI politics more complicated

We had two Fine Gael visitors to the UK on Monday, with Taoiseach Leo Varadkar in London to meet the prime minister, Theresa May, and Minister for Foreign Affairs Simon Coveney in Belfast for Stormont talks.

Coveney's performance impressed many observers. The Minister said Brexit must fully protect the Good Friday Agreement – a "legal document" – as well as the peace process and normalisation in general, and warned that Ireland will not vote for any deal that fails to do so. He made no reference to terrible Hugh Grant movies, yet there was a touch of the ham actor in all his tough talking. Leaving the EU cannot affect one word of the Agreement, as unanimously ruled by the UK Supreme Court five months ago, upholding a judicial review in Belfast last year.

If you are going to specify the importance of the Agreement as a legal document, you should give some weight to the fact that no judge can find Brexit has any bearing on it.

Connecting Brexit to the peace process needs even more care. The most readily inferred replacement for a peace process is a war process. Siren voices around Brexit have dropped this hint too often and no good is served by indulging them.

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As for the final deal, Ireland’s vote would be influential but it has no veto – an article 50 departure passes by qualified majority. Unless Coveney is involved in some smoke and mirrors understanding with London, he was just blowing hot air.

Confidence and supply

Varadkar’s comments were more interesting because he focused on a DUP-Tory confidence and supply deal as it might affect the Good Friday Agreement – another issue where vague risks to peace are being lazily inferred.

A possible legal challenge to any deal was reported on Tuesday but for now the matter remains an open question.

The Agreement requires the power of the sovereign government in Northern Ireland to be exercised with “rigorous impartiality on behalf of all the people in the diversity of their identity and traditions”, observing principles of respect and equality for “civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities.”

The emerging consensus from legal sources is that a DUP-Tory deal would not breach these requirements as it would not be a formal coalition, so the DUP would not be in a British government, while the Tories are unlikely to be daft enough to grant any discriminatory DUP requests.

London has already established it does not have to be impartial in its own identity and ethos – May and her predecessor David Cameron both committed their governments to the union. It is only how power is exercised that matters.

However, current Westminster arithmetic has clearly pushed us into a huge grey area that can no longer be delineated by the Agreement’s well-meaning waffle.

There are rumours the DUP has secured a compensation package for victims of the IRA’s Libyan weapons. Although the IRA killed more people from both communities than any other protagonist, such a package would still be seen as unequal and would also intrude on the Stormont talks agenda.

Just thinking about untangling this mess reveals the convoluted arguments ahead. Should a convention be established whereby Northern Ireland MPs do not participate in voting pacts with governments on Northern Ireland affairs? If so, what would be the point of being a Northern Ireland MP? They would be uniquely hamstrung in the Commons.

Should British governments never form pacts with Northern Ireland parties?

Constitutional fudge

Unionists are annoyed these questions did not arise over Labour’s sister-party relationship with the SDLP, or Labour’s various attempts to form pacts with the DUP, or the Conservatives’ 2010 pact with the UUP, or most of all with Sinn Féin’s bid to join an Irish government – the centrepiece of its unification strategy.

In fact, there is no issue with Sinn Féin in an Irish government unless Dublin becomes sovereign over Northern Ireland. The Agreement specifies this should happen through a Border poll, after which the Agreement and Northern Ireland itself will somehow continue to exist in a united Ireland, revealing just how much the sovereign impartiality question risks letting daylight in on magic.

Varadkar’s approach to all this was to warn last week that neither government should get “too close” to Northern Ireland parties, and to say he would press this with May in person. Then, in Downing Street, he said the prime minister had sufficiently assured him the Agreement will not be breached by any DUP-Tory deal in this instance.

It was positioning in the finest traditions of the British constitutional fudge. No wonder May looked at Varadkar like he was the star of her own personal rom-com. The Taoiseach is perhaps the only person she has dealt with in a year who has made her job slightly less horrendous.