Rigorous impartiality: What has been breached in the quest for a DUP deal and why the British will regret it

By Katy Hayward for The Constitution Society

The principle of rigorous impartiality

For over twenty-five years, the government of the United Kingdom has been under an extraordinary obligation. The last two governments have failed to uphold it. As a consequence, the present condition of the UK Union is unstable, and its future is more uncertain. 

Article 1 of the British-Irish Agreement made in 1998 to underpin the agreement reached by the parties in Northern Ireland states that, ‘whatever choice is freely exercised by a majority of people of Northern Ireland’ on whether ‘to continue to support the Union with Great Britain or a sovereign united Ireland’ (Art.1i):

the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions (Art.1v)

The obligation to exercise sovereign power in Northern Ireland ‘with rigorous impartiality’ serves two obvious purposes. The first is to protect nationalists in Northern Ireland from discrimination and neglect; the second is to protect unionists in a future united Ireland from the very same. 

‘Rigorous impartiality’ can be breached by official government decisions; it can also be undermined by the practices of the parties in government and their relationships to those in Northern Ireland. Those relationships never went beyond what might be termed sympathetic alliances (Conservatives and UUP; Fianna Fáil and SDLP). Things began to change with the Democratic Unionist Party (DUP)’s confidence-and-supply arrangement with the Conservative Party after the 2017 General Election. From that point, the internal dynamics and priorities of the Conservative Party were shaped by those of a single Northern Ireland party. . This, in turn, affected the Government’s approach to the international negotiations that were of such significance for Northern Ireland as a whole. 

Despite that experience proving ultimately to be none-too-positive for either party, the habit of partiality was soon to reach new intensity. The fractious conditions of NI politics implicitly justified the Government’s reneging of its obligations to implement the Protocol (negotiated by Prime Minister Johnson just the year before). Ministers echoedand amplified the objections of the DUP, which harnessed the anger of loyalists who were not only anti-Protocol but anti-1998 Agreement. The Government’s unusually intimate relationship with the DUP intensified as the party drifted further from exercising its governmental responsibilities, decapitating the Executive in February 2022 and vetoing the Assembly in May 2022. 

When the UK Government negotiated the Windsor Framework adjustments to the Protocol with the EU, it made little secret of the fact that such efforts had been expended with the demands of the DUP in mind. When the party made no return to Stormont, the Government’s decision to engage unilaterally with the DUP made sense to a degree: the DUP’s concerns about the Protocol were fundamentally about the security of NI’s place in the UK, and this was something that the British Government are best placed to address. 

However, the objective of restoring the devolved democratic institutions – and the failure to do so – is an intergovernmental and all-party concern in Northern Ireland, and should have been approached as such. Instead, the future of Northern Ireland became increasingly in the hands of the leader of a party for whom 79% of the electoratedid not give a first preference vote. 

This was illustrated by an extraordinary exchange in the House of Commons in which the Secretary of State for Northern Ireland, Chris Heaton-Harris, told the DUP leader, Sir Jeffrey Donaldson:

I can bring forward legislation in this place that does exactly what he needs it to do for his party to be able to give me a date when it will go back into the Executive in NI… as he knows, I constantly seek his guidance to ensure that I get this bit of my job completely right.

The ‘prize’ of functioning devolution was apparently judged to be worth the cost of any pretence at impartiality. 

What does ‘Safeguarding the Union’ mean?

It is little surprise, therefore that the deal secured from the UK Government by the DUP runs roughshod over principles that have formed the bedrock for the peace process for over thirty years. The Safeguarding the Union command paper outlining the package claims to ‘copper-fasten Northern Ireland’s political and constitutional place in the Union’. If it were to so, it would usurp the British-Irish agreement of 1998, and the 1993 Downing Street Declaration before it, that:

It is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination.

Equally unwise is the decision to affirm – rather than assuage or challenge – zero-sum notions of Northern Ireland’s status, i.e. those which assume every close link with Ireland comes at a cost to its relationship with Britain. Northern Ireland’s closeness to both Britain and Ireland was realised in new ways by common EU membership. The Protocol was an effort to try to avoid the worst effects of Brexit for the Irish border region, but it does not replicate of the conditions of full EU membership for the island. Thus, the command paper proudly claims that Brexit, with the Windsor Framework, ‘could, in time, result in considerable divergence between Northern Ireland and Ireland of a scale not seen for decades.’ During the Troubles, security forces blew up bridges across the Irish border; 30 years on from the ceasefires, the UK Government has decided to make a virtue of blowing up metaphorical ones.

In the Annexes to the command paper, the rhetoric is not just pro-Union, nor mere bias; it is dangerous misrepresentation: ‘The Government notes that the Irish Government has become increasingly active in looking towards a potential united Ireland in recent years.’ Such cynical ambiguity feeds prejudice about a state that the UK Government has recognised to have a legitimate interest in the future of Northern Ireland since its very creation. Such fear-mongering nurtures the very type of conditions which have incubated the problem that the Government wanted to address: an NI party more afraid of claims of betrayal than of a failure to use democratically-given power wisely.

Assessed under light that extends further back than Brexit and further forward than the next election, Safeguarding the Union may be seen to imperil its own objectives. It makes legislative changes and governmental commitments which have been designed, written and approved with just one party in mind. Worse, it breaches not one but many of the principles of the 1998 Agreement, in letter and spirit. 

For example, it makes no effort to acknowledge the principle of ‘parity of esteem’ for nationalism and unionism. That principle was essential to securing Sinn Féin’s endorsement of the 1998 Agreement. That Sinn Féin has not been minded to object too loudly to this omission should not be taken as any consolation for unionists – quite the opposite. 

The abandonment of the principle of rigorous impartiality is all the more serious because the UK Government cannot be assumed to be the one charged with such a responsibility indefinitely. If Sinn Féin forms the largest party in the Irish government by 2025, it will not immediately be officially constrained by a requirement for impartiality because it will not be exercising sovereign power over the north. 

But were it, in time, to do so, unionists and British citizens on the island will no doubt hope that the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions. 

Those words in the 1998 Agreement were carefully crafted over countless hours of negotiation. They set forth principles that were agreed upon after decades of bloody conflict and centuries of imperious negligence. In times of deep political distrust and uncertainty, they should be held on to all the more tightly. 

This article first appeared on the blog of The Constitution Society, an organization committed to the promotion of informed debate and is politically impartial. Views expressed in this article are the personal views of the author and not those of The Constitution Society.

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