Newton Emerson: Compromise on Northern Ireland protocol may be needed

There are two types of loyalist disturbances now occurring in Northern Ireland: politically motivated and criminally motivated.

The difference between crime and politics from illegal organisations has long ago been finessed to the point where this distinction can be made.

In Newtownabbey and nearby Carrickfergus, the motivation is criminal. The "dissident" South East Antrim UDA is having its drug-dealing empire dismantled by the Paramilitary Crime Task Force, comprising the PSNI, Her Majesty's Revenue and Customs and the UK's National Crime Agency.

This UDA faction, responsible for much of the violence of the past few days, has seized on the excuse of political discontent to lash out at the authorities.

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The UVF’s most delinquent faction, in East Belfast, has so far kept quiet due to being under even more police pressure.

One of loyalism's grievances is that it feels subject to more law enforcement than republicans

At a time when it feels as if something ominous is beginning, it should be noted how close we are to an ending. If both these errant factions can be shut down it would greatly assist the peace processing of the rest of loyalism – a policy Stormont calls “transition” and everyone else calls bribery.

There is an ironic Brexit connection to the criminally motivated violence.

The Paramilitary Crime Taskforce is constrained by the lack of Unexplained Wealth Orders, a civil power to seize assets. Introduced in Britain in 2017, it could not be adopted in Northern Ireland during the Brexit-related collapse of Stormont and is now stuck behind the Brexit backlog of legislation in Westminster, which had been scheduled to pass it last October.

Border smugglers

The imminent enactment of Unexplained Wealth Orders is why most of loyalism had made itself available for final peace processing. A request for £5 million of “community funding” was reported last November. Tragically, the chance to put loyalism out of business may have been missed by a matter of months.

This raises a wider Brexit connection. If loyalist factions can be defeated, why is so much of the Northern Ireland protocol premised on fear of dissident republicans and Border smugglers? There are only an estimated 200 active dissident republicans, all constantly tracked by the intelligence services, with their leaders so well-known they are tabloid celebrities. More gangs are involved in smuggling but again the linchpins are few, famous and watched around the clock. Why are they regarded as an immutable, almost natural phenomenon?

At the very least, law enforcement should be considered a primary means of mitigating the protocol. The lower the risk of smuggling, the less paperwork is required – an approach fully consistent with the protocol’s terms.

One of loyalism’s grievances is that it feels subject to more law enforcement than republicans, so loyalists might make the law and order case for a lower sea border, although it is understandable if they do not trumpet an argument that amounts to “you beat us, now beat them”.

The mystery is why nobody else is making this argument. London, Brussels and Dublin all supposedly agree that crime prevention is one of the sea border’s principal functions.

The second, politically motivated, type of disturbances cannot be seen as any better than the first. They began with serious violence in Derry, then South Belfast, much of it involving children. The implied argument was “violence worked for them, it will work for us”.

Parades and bonfires

The Loyalist Communities Council, representing the UDA and UVF, belatedly issued a statement on Tuesday promising "peaceful, democratic" opposition "until the protocol is amended to bring it back in line with the [Belfast] Agreement's core guarantees".

Far worse compromises with paramilitarism have been made throughout the peace process

The main form this opposition will take will be protests and parades, breaching laws that require notification to the Parades Commission. This ensures confrontation with the PSNI and has already resulted in a riot in Ballymena.

Parading is an issue considered solved in Northern Ireland. The last flashpoint Orange Order march was stopped by local agreement in 2016, leading to the longest period without street disturbances since the 1950s. The involvement of loyalist bands in the new anti-protocol parades reactivates multiple points of contention and threatens to cast the whole parading issue back to square one.

Bonfires are another problem considered close to resolution, with significant progress made in the past few years via a carrot-and-stick approach by police and public bodies.

Loyalists have now withdrawn co-operation from bonfire schemes – a tactic used by the East Belfast UVF in its last attempts at agitation. The PSNI came down on that hard, with success, but it would be overwhelmed if it had to do so more widely.

Loyalism knows this, of course. It is setting up protests designed to spiral out of control. If there is any possibility this can be prevented by mitigating the protocol – not even amending it – it must be urgently explored alongside law and order approaches.

Far worse compromises with paramilitarism have been made throughout the peace process. Protecting that process is what the protocol is ultimately meant to serve.