by Frank Schnittger
Thu Mar 2nd, 2023 at 08:16:20 PM EST
The political agenda in the UK seems to be moving on. The verdicts are in. Sunak is being praised for his political adroitness. Boris has been wrong-footed and even the perennially churlish Lord Frost has been muttering about aspects of the deal begin helpful.
The Windsor Framework Agreement (hereinafter referred to as the WFA) is being hailed as the harbinger of a reset in relations between the UK and EU more generally. A sort of GFA (Good Friday Agreement) for the UK and EU as a whole.
The phoney UK/EU Brexit war is over, and the focus now moves to how relationships in other areas can be improved, most immediately in relation to the Horizon research funding programme and improved access for the City to EU financial services markets.
US firms are apparently poised to invest billions in the N. Ireland economy and the Prime Minister has praised the deal as offering N. Ireland the best of all words and a unique trading opportunity in the world. Now why didn't the rest of the UK think of that? And indeed, what about Scotland?
But, of course, N. Ireland marches to a different drumbeat. There must be something fishy going on if themmuns [nationalists] are happy. What more angles can be exploited for sectarian advantage? No doubt the forthcoming budget is an opportunity to be exploited for an extra billion or three. Another RHI [Renewable Heat Initiative] scandal on a grand scale in the making?
There is also the rather awkward and embarrassing question of the First Ministership. We can't have themmun's appearing to rule the roost, now, can we? So perhaps another election has to be thrown into the bargain to squeeze the UUP and TUV (and SDLP) still further by claiming the First Ministership as the only game in town.
The DUP, which opposed the GFA and brought you Brexit, is now bringing you the WFA and putting N. Ireland at the forefront of global investment opportunity. Even President Biden may be on his way to seal the deal. Not a bad achievement for a small party with few members and only 21% of the vote.
But is it enough? TUV leader Jim Allister, Ian Paisley jnr., Sammy Wilson, and Jamie (Bin-Lidin') Bryson have been making the usual argument about the WFA breaching the 1800 Acts of Union, as if those acts had not already been amended and superseded many times since, most notably by the Government of Ireland Act (1920).
They point to the continued existence of customs controls at points of entry as evidence for a sea border, despite the fact that customs controls can operate anywhere within a sovereign territory and do not therefore constitute evidence of a sovereign border.
But of course, now the lawyers will have their say. David Allen Green asks whether the `Stormont Brake' is more ornament than instrument. He cites its limitations (edited for brevity) as:
8.1 "most exceptional circumstances and as a last resort, having used every other available mechanism" and
- The brake will only apply to new European Union legislation, not existing legislation.
- There will be only a short period to challenge the legislation.
- The brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.
- In practice, it will be difficult-to-impossible to apply.
- The documents expressly describe it as an "emergency" brake.
- For it to be used, the Northern Irish executive needs to be in place and functioning.
- There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.
- But mere expressions of concern will not be enough. The MLAs will need to show:
8.2 significant impact specific to "the everyday life of communities in Northern Ireland in a way that is liable to persist".
And if you read that last requirement carefully you will see that it is comprised of three component conditions:
8.2.1 scope - "everyday life of communities" (and note the deft plural);
8.2.2 significance of impact; and
8.2.3 duration - "in a way that is liable to persist".
The MLAs also need to show
8.3 that they have consulted businesses and civic society, as well as
8.4 they have participated in any prior consultation exercises for the measure.
9. Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union
9.1 why it considers the EU legislation is different from what went before, and
9.2 that the United Kingdom itself considers that it "would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist."
So, if anything, in fleshing out the detail of how European law can be dis-applied, the `Stormont Brake' is even more restrictive than already provided for in the Protocol in Article 16.
What it does do however, is give the Assembly a much more explicit role in the detailed ongoing operation of the Protocol in addition to the broad democratic consent to articles 5 -10 provided for in Article 18 of the Protocol by way of a majority vote in the Assembly every four years.
The ongoing involvement by the First and Deputy First Ministers in the Specialised Committee and joint consultative working group should also ensure greater sensitivity to N. Ireland concerns and greater local ownership of the Protocol as a whole.
The DUP could reasonably argue that this more detailed involvement in the ongoing operation of the protocol constitutes a major improvement on the Protocol as originally outlined as part of the Withdrawal Agreement. They could adopt a "wait and see" approach as to how all of this works out in practice.
The DUP could also argue that all of this makes the First and Deputy First Minister roles more important and that they need a new electoral mandate to take on those powers. No doubt they would also argue that unionist parties need a minimum of 30 MLA's to apply the `Stormont Brake' and that the UUP can't be trusted to toe the protocol sceptic line.
With only 25 MLAs, and with the TUV and independent unionists providing only an extra three, the DUP is tantalisingly short of the 30 MLA's needed to apply the brake without UUP support whenever they have a "concern".
So there is a narrow path open to the DUP to save face and accept the deal, especially if there are some extra sweeteners in the forthcoming budget. They can argue that the WFA significantly increases N. Ireland's say in the ongoing operation of the Protocol but that they need a bigger mandate to do this effectively. Give us 30 seats and we will hold the EU to account!
Could that be a winning electoral slogan for the DUP?
Of course, the UUP and the SDLP will once again be thrown under a bus under this scenario. So what's new?
Alex Kane (ex UUP spin doctor) plaintively asks why London isn't more supportive of unionist concerns. This will come as news to nationalist parties who were barely consulted throughout the whole Brexit and post Brexit protocol process. Or indeed the 56% who voted Remain.
If his question isn't entirely rhetorical, I can provide him with an answer. Unionism has been enormously damaging to the British national interest ever since the Troubles forced N. Ireland onto the global political agenda. Not only has it damaged Britain's reputation for political sophistication and fairness, but it has also been hugely damaging to the British economy.
The WFA is a final, exasperated, attempt to stop the Brexit wars which have been disastrous for business investment in the UK economy - and Sunak's prospects for re-election. The Tories badly need to make N. Ireland as an issue go away if they are to have any chance. That Alex Kane should need this spelled out to him is truly astonishing.
Another unionist commentator, Newton Emerson, has an entertaining exposition of how the UK and EU guides to explaining the WFA are completely different. Both are a masterpiece of spin, appearing to say diametrically opposed things and yet not actually contradicting each other. He concludes:
But the UK guide goes further. "It is international standards which apply in practice," it concludes, "with commitments from the UK and EU in the [free-trade agreement] to maintain them. Indeed, of the nearly 3,600 international goods standards in place, there are differences between the UK and EU in only 11. ″
The implication that we have been trapped in a futile argument for years is rather casually made. If international standards are what matter, why not dynamically align with the EU on goods and make the protocol redundant?
The Windsor Framework is a genuine achievement, representing real movement by both sides. It has delivered improvements, repaired relationships and should restore Stormont sooner than expected. The thawing UK-EU relationship is ultimately more important than the details or shortcomings of any deal. Some conflicting spin after a difficult negotiation is inevitable and hardly disastrous.
Hopefully, DUP Leader Jeffrey Donaldson, has a similar appreciation of where Britain's priorities truly lie. He will need to have, if he is to avoid leading N. Ireland down a road where the British government will have no option but to turn to Ireland for help in governing the place.
The Protocol has been done. The chef isn't coming back for another go at selling a pig in a poke. His goose is cooked*. The oven ready deal has been well and truly roasted. The last morsels have been chewed over. Britain and the EU have moved on to the dessert course. The champagne corks have popped and won't be put back into the bottle. For the DUP, it's shit or burst time now.
*PS Nevertheless Boris is back to his old misinformation tricks. He states:
Under the deal "British genome edited tomatoes could not go into the making of a cheese and tomato sandwich in Northern Ireland, which is a matter of great regret," Mr Johnson said.
When there is absolutely no reason why such sandwiches couldn't be made in N. Ireland for consumption in N. Ireland, with the tomatoes passing unmolested through the Green channel.
Indeed, this is a peculiarly bad example to take, as the EU grows its own tomatoes and are hardly likely to import N. Ireland made sandwiches containing British genome edited tomatoes and transported for hundreds of miles after which they would be rather stale. They are therefore a particularly low risk item from the point of view of being smuggled into the EU.
This is up there with British grown non-bendy bananas being discriminated against. But he never did let the truth get in the way of a good yarn. And of course the Euro sceptics lapped them up as gospel.