By Steve Bell
Brexit created unnecessary problems for the Irish people on both sides of the border. Despite the fact that pro-EU sentiment remained dominant in the south, and that 56% voted against Brexit in the north, the whole of Ireland faced major disruption. The clear danger was that the all-Ireland economy could be disrupted by the imposition of border controls on the island of Ireland. This would undermine the Good Friday Agreement.
From the start of the international debates around Brexit’s implementation, it was Irish republicans who warned of the serious situation. Sinn Fein campaigned inside Ireland, in the European parliament, and lobbied in the United States, to achieve “special status” for the north which would allow for the all-Ireland economy to remain inside the single EU market with no land border, whilst allowing the six counties of the north to retain access to Britain. This campaign, although rarely acknowledged, pushed the Irish government and EU commission to seek distinct protections in negotiations with the British government.
After extended, and painful, bluster, the British government finally conceded to the principal of maintaining the EU’s single market across the island of Ireland, an exceptional arrangement for Northern Ireland in the UK. The negotiated Treaty that achieved this, the Northern Ireland Protocol, then became the focus for a campaign by the Democratic Unionist Party (DUP), supported by the then Prime Minister Boris Johnson and other Tories, who had been responsible for negotiating the Protocol.
For the DUP the concern was that any element of special status – or difference between the north and the rest of the UK – appeared to undermine the union and Ulster unionism’s place in it. For Johnson, and the European Research Group (ERG) Tories, supporting the DUP offered an opportunity to utilise anti-EU rhetoric to undermine growing opposition in Britain to the Tory government and weaken internal Tory rivals.
Windsor Framework ends “anti-Protocol” campaign
Now, with the signing of the Windsor Framework by Sunak’s government and the European Commission(EC), the anti-Protocol campaign has suffered a fatal blow. Organising a series of rallies and meetings, the unionist parties and loyalist paramilitaries demanded the repeal of the Protocol. Most significantly, the DUP brought down the devolved government in Stormont, refusing to return until the British government negotiated an alternative to the Protocol. However the different parties understood the issues, they were united against any border checks between Northern Ireland and Britain, and opposed to any EU involvement additional to that obtaining in Britain.
The Framework represents the defeat of the anti-Protocol campaign. An agreement in principle has been made between the British government and the EC. The amendments to the Protocol will be implemented for the most part without a parliamentary vote. It will be implemented through a series of legal instruments These are expressed in fourteen, so far, legal documents issued by the British government, and a number from the EC.
As is clear, in the joint declaration from the EC and British government “…these solutions constitute a set of meaningful changes to the Protocol and its operation.” (1) It was agreed by all parties that some changes were required in the Protocol. At the time of its agreement there were a number of waivers on provisions to allow for further talks on implementation. The Framework has brought the main negotiations to an end.
With no obvious date or future vote to focus on, the anti-Protocol campaign has run out of road. It either accepts an amended Protocol, or provides an alternative. This has brought to an end the united unionist campaign. Ulster Unionist Party (UUP) MLA, and former party leader, Mike Nesbitt stated “If the DUP reject this proposal, or this framework, I really don’t know what the next step is because you always need an alternative and I haven’t heard anyone articulate an alternative.”
The DUP has decided upon a month long internal consultation, reporting at the end of March. UUP leader, Doug Beattie said that “Any political party should be able to look at this… come up with what they believe to be the outcome, certainly within a week or so.” He also called for the DUP to re-enter Stormont while engaged in its consultation.
The substance of the Framework
The British government identifies three key areas where the Framework changes the implementation of the Protocol. These are, “restoring the smooth flow of trade within the UK internal market”; “safeguarding Northern Ireland’s place in the Union”; and “addressing the democratic deficit”.(2)
“Restoring the smooth flow of trade within the UK internal market” refers to changes covering the movement of goods from Britain to Northern Ireland. As Britain is no longer in the EU single market, there is an issue of integrity for that market when goods enter Northern Ireland. The Protocol established a border in Northern Ireland ports. This meant goods to be consumed in the six counties were to be subject to the same checks as goods transiting to the south of Ireland.
The Framework changes this by establishing a green lane for goods to be consumed in the north, and a red lane with checks for goods transiting. To take part in the green lane, British traders would have to join a “Trusted trader” scheme. There would still be monitoring, but mostly based on readily available commercial data being shared.
“Safeguarding Northern Ireland’s place in the Union” refers to different regulations and standards being harmonised. Under the Protocol, a number of goods coming into the north did not meet EU regulatory standards – these included seeds, plants, trees, potato seedlings, sausages. Differences also existed on VAT levels on energy saving materials, alcohol duties, and standards in medicine supply. The Framework provides legally binding and permanent solutions – allowing harmonisation based on standards elsewhere in Britain.
“Addressing the democratic deficit” refers to the continued involvement of EU rules and European Court of Justice (ECJ) jurisdiction in the north. Under the Protocol, new EU rules would be subject to no discussion or decision by the Assembly, or MPs in the UK parliament.
The main change here is the introduction of the Stormont brake. This will allow 30 members from 2 parties to oppose the implementation of new or amended EU rules. The British government will consult with the Assembly, and if it is decided that the new rule has “a significant impact on the day to day lives of businesses and citizens” then the UK government has the power to veto the new EU rule from ever applying in the north of Ireland. That veto can only be challenged by the EU through independent arbitration mechanisms – not the ECJ.
Concessions or rationalisations?
Now Sunak and the British government have acted as though this is a triumph for their negotiating stance. This doesn’t stand up to examination. Presumably the EC and Irish government are happy for British politicians to boost themselves before their domestic audience if it yields the end result.
The proposals covering the first two key areas were mostly offered by the EC to the British government in documents from the Commission, in June 2021, and October 2021. Some details are different in the Framework – but the idea of the two lanes, and the equalisation of goods/conditions between Britain and Northern Ireland are clearly there. Sunak and team simply progressed with what had previously been offered to and rejected by Johnson and the ERG.
The Stormont brake is definitely an innovation. But, equally it is the most unclear and problematic element of the Framework. It appears to offer the hard-line unionists a veto. However, in reality the brake in Stormont is merely a pause. It is the British government which has the decision whether to actually apply it. If applied, it could be overturned by arbitration. If not overturned in arbitration, the EC could decide that the issue was so fundamental that it could eject the north from the single market. However understood, the brake only makes sense as an instrument of last resort, rather than routine control.
The British government will be bringing a motion to the Commons on May 22nd, making the mechanism concrete. Parties in Ireland which support the Framework have expressed concern about the mechanism. Sinn Fein have expressed the view that the Stormont brake is potentially destabilising. This is a view shared by the Alliance Party , and the Social Democratic and Labour Party
Overall, the changes appear to be concessions to the unionists. Actually, they are a rationalisation of the outstanding economic issues from the Protocol which will benefit the economy and majority of people in the north. While “addressing” the concerns of unionism, the Framework restates the essential core of the Protocol’s outlines.
Where now for DUP?
In April President Biden is coming to Ireland to celebrate the twenty-fifth anniversary of the Good Friday Agreement on April 10th. Before then the DUP will want to present a unified position on the Framework, and the issue of the reestablishment of Stormont. The internal consultation is as much about holding the DUP together as it is about analysing the Framework. Early responses from senior leaders including MPs Gregory Campbell, Ian Paisley, Sammy Wilson and Lord Dodds inclined towards rejection without being definite. Jeffrey Donaldson has been more cautious.
In truth the DUP has much to be cautious about. GDP in Northern Ireland has doubled since the Good Friday Agreement was signed, with GDP per capita rising from £13,391 in 1998 to £25,575 in 2020.(3) The DUP voted against the Agreement in 1998. Since the operation of the Protocol, growth in Northern Ireland has been higher than any other region of the UK with the exception of London. The DUP campaigned against the Protocol. The business community expects substantial increases in inward investment from the Windsor Framework. The DUP cannot afford to lose the support of the business community.
Equally, the DUP having campaigned for Brexit faces a population concerned about the problems Brexit created. The Queen’s University Belfast “Testing the Temperature” poll of February 2023 shows 59% of those polled do not believe that Brexit has been “a good thing”. 62% believe that the Protocol gives “unique opportunities that could benefit Northern Ireland”. When asked what their top policy concerns were, three quarters of the voters placed the health service & the economy/cost of living as their top two concerns. Only 22% gave the Protocol as their top concern.
The Lucid Talk poll of March 10th found that 67% of all voters are in favour of the Framework. But there is still great caution within unionism, where 38% would support the Framework, with just 16% of DUP Voters in favour. 69% of all voters believe the DUP should now return to government. This is more nuanced in the unionist community, with 67% of UUP voters supporting DUP’s return to Stormont, compared to 17% of DUP voters.
A return to the 1800’s
The final position of the DUP is then in the balance. Drawing on individual statements will not bring clarity. One important document has already been produced which gives some insight. This is the “Report and Independent Legal Opinion on Windsor Framework”, published by the Centre for the Union think tank. Its overall summary remains cloudy: “It is a significant step forward, and provides a new framework within which a solution could, with some necessary improvements, be arrived at. However, in and of itself it does not represent the solution”. And that it does not offer a “sound basis” to “re-enter power-sharing in Northern Ireland.”(4)
The document hardly touches concrete issues, but centres on constitutional questions. Indeed it contains a whole legal annex on whether the Windsor Framework restores and fulfils the Acts of Union 1800. This opinion is given by John F. Larkin KC, who was Northern Ireland Attorney General from 2010 to 2020. Clearly something here weighs very heavily in the considerations of political unionism.
The Acts of Union 1800 have previously been invoked in a legal challenge to the Protocol by unionist politicians who argued that the latter was incompatible with the former. However, the Supreme Court, in February 2023, ruled that the Protocol was lawful, in that Parliament approved the Protocol when it passed the European Union (Withdrawal Agreement) Act 2020.
Undaunted, the DUP continues to foreground the Acts of Union 1800. Before briefly examining the issue, it is surely worth considering the legislatures which implemented this Act. After all, clutching this strongly onto ancient legislation begs the question of who were the venerable democrats behind it.
The Acts of the Union 1800 were the product of the Irish and British parliaments, although the former was dissolved through the Acts. This is how one Irish scholar describes the Irish parliament: “Parliament represented the Protestant oligarchy. The English government named the executive. Of the 300 members of the Irish Commons, only 64 were elected – on a severely restricted franchise. Of the rest, 124 were nominated by peers and 91 by commoners. Others were government placemen. Certain families passed on parliamentary seats, like property, from father to son. Powerful politicians, called ‘undertakers’, whipped members into line for Dublin Castle – the English Executive in Ireland – and were rewarded with the patronage of the country.”(5)
The British parliament was no better. It had a franchise involving less than 2% of the population. Roman Catholics were barred from becoming MPs.
The crisis of political unionism’s perspective could hardly be illustrated more clearly than in its preference for these institutions over the majority of the population in Northern Ireland today, who voted against Brexit, support the Protocol and want the Assembly to be restored.
Into a mire with no exit?
That said, the apparent importance of decrepit legislation is central to the Centre for the Union document. We read: “The fundamental constitutional test was, and remains, the restoration of the Acts of the Union, specifically Article VI thereof. The Windsor Framework does not secure such a restoration. i) EU law in relation to matters of trade indisputably continues to apply, albeit in a significantly reduced manner, to Northern Ireland, but not to the rest of the UK… unequal footing in matters of trade… jurisdiction in these areas of the ECJ. ii)…trusted trader scheme and complete administrative requirements which does not apply to those trading between 2 or more locations in Great Britain.” (emphasis in original)
This is endorsed by the legal opinion, which finds that that the Windsor Framework is not “…compatible with the Acts of Union 1800, particularly Article VI thereof”. Article VI reads: “…his majesty’s subjects of Ireland shall have same the privilege, and be on the same footing as his Majesty’s subjects of Great Britain.”
The document does not suggest how EU law can be entirely ignored while Northern Ireland remains part of the EU single market. Nor does it suggest how trading between Britain and Northern Ireland can be absolutely harmonised with trading inside Britain, while the latter is outside the EU’s single market. Obviously because these things can’t be entirely tallied. The Windsor Framework removes a lot of friction, and that really is the best that can be done.
The DUP apparently cannot find refuge in anything but the past. Ireland is fast changing, not least in the northern six counties. The party can sink deeper in a mire of nostalgia or it can start addressing the society it purports to represent. The next few weeks will be a turning point for political unionism.
(1) “Political Declaration by the European Commission and the Government of the United Kingdom”, 27 February 2023
(2) “The Windsor Framework: A new way forward”, HM Government CP806, February 2023.
(3) Figures from Belfast Telegraph, 13th March 2023
(4) “Report and Independent Legal Opinion on Windsor Framework”, James Boyle, Ethan Thorburn, James Bryson and Ross Thomson, Centre for the Union, March 2023
(5) “Irish Nationalism : A History of its Roots and Ideology”, Sean Cronin, The Academy Press 1980, P.16