Dan Kitwood UK in a Changing Europe
The ‘Windsor Framework’ agreement between the EU and Britain to maintain or replace (take your pick) the Northern Ireland Protocol to the Brexit Withdrawal Agreement is a truly remarkable document. It allows Northern Ireland to have free access to both the EU single and UK markets for goods.
The British Prime Minister visited to ensure we knew how great this was even though, as a staunch Brexiteer, he had helped ensure that Britain walked away from this “privilege”, this “prize” that put Northern Ireland in a “unique”, “unbelievably special position” . . . ‘like the world’s most exciting economic zone”, that ensures we are an “incredibly attractive place to invest for businesses”. Perhaps the most fulsome declarations against Brexit I have ever heard.
Yet the truly remarkable factor is that such an arrangement is supposed to be impossible. When Russia claimed that Ukraine could have close trading relationships with the EU and also with its own Eurasian Customs Union, the EU claimed it couldn’t be done. Ukraine had to look decisively West and could not continue its attempts to straddle between it and Russia. We know, of course, that this provoked the Maidan uprising in 2013-2014, when the Ukrainian President decided that the price of greater access to the EU and erecting barriers to Russia was too high.
Ukraine split over his decision, with the open intervention of the United States, repression by the Ukrainian security forces, violence by protesters and seizure of weapons by pro-western elements, including the far right and fascists. This led to a counter-mobilisation in the East of the country among pro-Russia Ukrainians and a civil war that led to Russian armed intervention in Crimea and then Donbas. The conflict never really ended and, of course, we know that this eventually led to the Russian invasion and the proxy war between the US with its NATO allies, and Russia.
So, why is it that what has just been achieved in the North of Ireland could not be done in Ukraine?
The answer, of course, is that the decision in respect of Ukraine was a geopolitical one aimed not just at Ukraine but against Russia, even if some claim that the bureaucrats in Brussels did not fully appreciate this aspect of what they were doing. In any case, the new ‘Windsor Framework’ is essentially a political agreement with political significance that does not primarily lie in the North of Ireland.
It has been pointed out by commentators that the EU and British have put entirely different spins on the significance of what has been agreed, with the former claiming that it has not “renegotiated the protocol” while the British have claimed that the deal “fundamentally amends the text and provisions of the original protocol”; lots of ‘dancing on the heads of pins’ according to one journalist.
Nevertheless, the protocol stays, there remains a ‘border on the Irish sea’ and not inside the island, and the fundamental relationship between the EU and Britain remains. The EU has made concessions and the British have agreed measures that the EU thinks it can live with which minimise physical and other trade-related interventions. The EU Q&A is replete with references to the limits of its flexibility. So, the trusted trader scheme can be suspended if ‘1) the UK fails to provide the EU with access to the relevant UK IT customs systems and databases, or 2) the UK does not live up to the commitments it undertook when setting up the trusted trader scheme.’ On excise ‘the UK will not be able to apply any duty rate below the EU minima’; on duty rates for small producers of alcoholic beverages ‘the UK will not be able to set duty rates for small producers below EU minima rates. The respect for EU minima rates will protect the level playing field with the EU’ etc.
Breaches of the controls are inevitable, but it must be considered that these are going to be relatively unimportant. Northern Ireland is both small and peripheral and ultimately so in the political sense as well, a far cry from Ukraine. The EU was quick to claim the deal as a one-off, so the Swiss can’t follow up on it. The significance of the deal agreed lies in the British acceptance that the road is running out on hostilities with the EU, a project that is taking its Tory sponsors to electoral defeat.
The deal is not however the last word. The disapplication of EU laws is still winding its way through Westminster and controls on imports to Britain have still not been introduced; Brexit has still not been ‘done’. The ’Windsor Framework’ has still to be implemented while deadlines for the various steps are part of the agreement. Beyond this, the problem of continued divergence between the EU and Britain remains, as does its potential impact. While on the British side the debate is about the extent of future divergence, or even its advisability, on the EU side the debate will be about the potential benefits of further deepening, where consideration of its effect on relations with Britain will be a minor concern.
The major innovation beyond the rather technical aspects of trade policy is the introduction of a ‘Stormont Brake’, as an ‘emergency mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland (Stormont), in the most exceptional circumstances, as a last resort . . . to stop the application of amended or replacing provisions of EU law . . .’
‘The Stormont Brake can be triggered only after having used every other available mechanism, and where the amended or replacing EU act, or a part of it, significantly differs in scope or content from the previous one and application of such amended or replacing act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist. . . . If triggered and if the conditions are met, the amended EU act would not apply automatically in Northern Ireland.’
This represents the introduction into the workings of the Protocol a mechanism akin to the ‘petition of concern’ introduced in the last British initiative to save the Stormont administration–New Decade, New Approach–meant to get Stormont to work after the previous breakdown. The original devolution arrangements, meant to demonstrate that the Northern Ireland polity could function ‘normally’ and without conflict, introduced powers of veto for each sectarian bloc as a key incentive to make them work it.
The petition of concern was meant to be a last resort insurance-type mechanism but was reportedly used 115 times in five years, a testament not to it working, or to the number of issues absolutely vital to one side or the other, but to the degree of sectarian division. It has quickly been speculated that the restrictive grounds of its use, mirrored in the wording of the new deal as set out above, would make no difference to the willingness of unionists to paralyse the Protocol agreement with the EU. There is no reason why this might not be the case except for the different circumstances of the ‘Windsor Framework’.
Like the ‘New Decade, New Approach’ deal, it requires 30 members of Stormont to trigger it from at least two parties, and since there are 37 unionists out of a total of 90 members, this looks eminently possible, even accounting for those specifically excluded. Once triggered it would take a harder to procure ‘cross-community’ vote to allow any suspension of a new EU law to be lifted.
While there are various other, on the face of it, rather onerous requirements, including for consultation, the key difference is that the British government is required to apply the veto on any new law, and the British government is not going to do this if it is not in their interest as well, regardless of what unionists think. If it does, the EU can then take retaliatory measures that are proportionate.
It is just about feasible for unionists to repeatedly attempt to apply the brakes, but this would lead to ridicule for themselves and their Brexit cause, and would fail, not mainly because of this but because the British government is in charge. The British, by making the agreement in the first place and failing to meet the Democratic Unionist Party’s seven tests, have shown that the demands of unionism are not its priority.
The Stormont Brake has been characterised as a carrot to unionism but one that requires the DUP to return to Stormont and end its boycott, as it can only be triggered in a functioning Assembly. The offer of a veto is thus a sardonic judgement on the power of the veto the DUP already wields.
It was widely thought, even before the appearance of the new deal, that the DUP would play for time so that it would withhold judgement before the local elections in May. These, it is thought, would reveal the verdict of the majority of unionists on the deal to be negative, or certainly negative enough to damage the DUP should it accept it. This would hardly be a surprise since an oft-repeated unionist expression is ‘not an inch’. Unfortunately, it cannot retake the ground itself and the crisis is of its own making – by supporting Brexit, accepting the different circumstances of Northern Ireland, opposing the alternative Theresa May deal, even if it could have worked, and the initial support it gave for the Protocol’s benefits. This leaves it ill-prepared for a battle against the British government.
Postponing decision on the deal might appear smart, especially since the party is divided, but it might not take that long before this looks weak, and vulnerable to accusations from rivals that it is. The main rival is Traditional Unionist Voice, which is a one-man band, which itself illustrates the hollowness of unionist opposition. This, however, can just breed frustration and anger. Far from protecting themselves, DUP delay may simply strengthen unionist opposition by opening the door to those willing to be clear and forthright, with resignation developing among others of its supporters. In any event, in local terms, the Windsor Framework is a defeat for unionism. You can tell this, when even the King gets it in the neck.