When Labour came to power, some Ulster unionists believed that their problems with the Irish Sea border might start to ease. They hoped that Keir Starmer’s plans to ‘reset’ the UK’s relationship with the EU would make trade barriers between Great Britain and Northern Ireland increasingly redundant.
So far, the Government has done almost nothing to justify that optimism. And this week, the Northern Ireland Secretary, Hilary Benn, delivered another blow to pro-Union expectations, by refusing to trigger the so-called ‘Stormont brake’ on EU legislation for chemicals. This was the first serious test of the effectiveness of that ‘democratic safeguard’, which was supposed to be a key selling point of Rishi Sunak’s Windsor Framework agreement with Brussels.
Under the mechanism, a coalition of 30 or more MLAs at Stormont can ask the government to pull the brake, if they object to changes in EU law applying to Northern Ireland. Ministers at Westminster then have two months to decide whether to raise the issue with Brussels.
In this instance, unionists objected to the EU’s new rules on packaging and labelling chemicals, after experts warned that added costs and barriers could harm an industry covering £1 billion of annual trade across the Irish Sea.
On Monday (the deadline for a response), Benn wrote to the Northern Ireland Assembly’s speaker, Edwin Poots, claiming that the problem did not meet the threshold for triggering the brake. The Secretary of State said that the rule changes would not have ‘a significant impact specific to the everyday life of communities in Northern Ireland’, though he acknowledged that they could create divergence from British law.
With that in mind, Benn promised to ‘avoid new regulatory barriers arising from our classification, labelling and packaging regimes for chemicals that would undermine supplies into Northern Ireland’. Instead of triggering the brake, the Government would ‘explicitly consult’ on ‘applying a consistent regime across the United Kingdom.’
The problem, then, as Labour see it, is not the change in EU requirements, but UK rules remaining the same. That interpretation will alarm Brexiteers like Lord Frost, who warned that the framework could be used to force Britain back into alignment with the EU single market. Unionists will also be nervous that the Province’s constitutional status may become part of a new national row about Brexit.
This episode suggests that the Stormont brake is, as its critics always insisted, ineffective at preventing Northern Ireland diverging from the rest of the country. The criteria it requires can be interpreted as covering only the most extreme circumstances, and it looks like ministers will take exactly that approach.
Benn’s offer of a consultation on UK-wide chemical legislation could end in one of two, equally unpromising ways. The government may decide that changing British rules would be disruptive to GB firms and anti-competitive. There is already a precedent for such a decision. When Northern Ireland was subjected to added food labelling regulations under the Windsor Framework, ministers promised that the national regime would soon catch up, but those plans were ditched by Labour at the request of food businesses.
That was understandable, but it implied that Northern Ireland would be left to struggle on its own, if the alternative was asking mainland UK companies to share the inconvenience.
The other possibility is that Labour begin to harmonise regulations with the EU, to avoid issues inside the British market. Conservative critics are likely to portray that as an attempt to unpick Brexit and it could undermine potential advantages for UK firms.
The Product Regulation and Metrology Bill, which allows the Government to quickly adopt new EU laws and standards through secondary legislation, is currently making its way through parliament. The Department for Business and Trade says this law will give ministers flexibility to keep up with industry standards and avoid divergence in the UK market. Labour’s opponents say it is an underhand way of making us again rule-takers from Brussels.
The idea that Northern Ireland could be used to force Britain into realignment with the EU is not just a Brexiteer fantasy either. Theresa May’s backstop was designed specifically to keep the whole UK tied closely to the customs union. And remainers used the province’s position ruthlessly, to try to undermine the previous government’s efforts to negotiate a deal with Brussels.
Thanks to the Windsor Framework, the Irish Sea border is now firmly entrenched and its effects are becoming increasingly disruptive to Northern Ireland’s place in the UK. The province remains under a vast swathe of EU law, and the relentless pace of Brussels’ regulation is already pushing it further from Great Britain.
The idea that the UK might voluntarily resubscribe to single market rules is attractive to unionists, but it is also dangerous politically. The EU is unlikely to relax its demands for checks and paperwork, even if Britain moves towards its regulatory regime. And the framework means that any change in policy at Westminster brings back every previous issue with divergence.
Perhaps more importantly, unionists will be nervous that Northern Ireland could be used as an excuse to roll back Brexit. That could generate long-term resentment in London that is at least as damaging to the Union as the Irish Sea border.
Under the Windsor Framework, Northern Ireland was promised a privileged position that it could exploit to trade seamlessly with the rest of the UK and the EU. That claim has long since been exposed as a lie. The province was cut off from the British economy, on which it disproportionately relied, by barriers that severed supply chains and stymied investment.
Under the Labour government, the empty promise of the ‘best of both worlds’ could soon turn into the ‘worst of all worlds’, if it continues to take a subservient attitude to the EU and refuses to prioritise repairing the UK internal market.
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