It’s now a week and a half since the Government published the ‘Windsor Framework’; a deal that it claimed restored Northern Ireland’s ‘full and unfettered’ access to the UK internal market.
The province’s biggest unionist party, the DUP, promised to apply ‘seven tests’ to this agreement. They would gauge, among other things, whether it removed the Irish Sea border, resulted in ‘no checks’ on goods moving between GB and NI and repaired critical parts of the Acts of Union – the law that created the United Kingdom.
Admittedly, the Framework was a complicated set of documents. The Government’s command paper, subtitled ‘A New Way Forward’, turned out to be effectively a sales pitch, while the detail was contained in multiple draft legal texts, and the EU provided its own interpretation.
But it soon became obvious that the DUP would struggle to argue that the agreement met its tests. Rishi Sunak had oversold the notion that it removed ‘any sense’ of a border in the Irish Sea.
Companies would still have to fill in customs declarations to send goods from Great Britain to Northern Ireland, although the number of data fields would be reduced. The EU would continue to conduct checks on products destined to be sold in the province. And, perhaps most critically, only single market regulations, rather than British rules, would apply to goods for sale in Northern Ireland, aside from food and medicines.
Since July 2021, the DUP claimed repeatedly that it would judge any deal on the Protocol by its ‘seven tests’. On Tuesday, however, the party’s leader Sir Jeffrey Donaldson asked a new eight-person panel to compile a report that will presumably guide his final decision. He is not now expected to make that determination until April.
The group was asked to ‘undertake a wide consultation process within Northern Ireland, listening and taking views on the framework document’. Although Donaldson claimed it included ‘independent thinkers who have standing within the broader community’, it is composed mainly of party members, including former Stormont first ministers Peter Robinson and Arlene Foster.
So what’s going on? Has the DUP ditched its seven tests? Is it preparing to accept Sunak’s deal, by dressing up its decision as a result of ‘consultation’?
That’s certainly possible. Three of the party’s high-profile Westminster politicians, Sammy Wilson MP, Ian Paisley MP and Lord Dodds – all of whom have been scathing about the Windsor Framework – are omitted from the panel. It does, however, include DUP ‘pragmatists’ and a businessman who tacitly backed Theresa May’s ‘backstop’ arrangement.
And what of the Conservatives?
Before Rishi Sunak unveiled his deal, a revolt seemed to be brewing in the Conservative Party’s Eurosceptic wing, with the implication that it would be guided by the DUP’s view. A number of high-profile MPs, and even some ministers, were critical of the idea that the Government would scrap the Northern Ireland Protocol Bill, which was designed to dismantle the sea border through Westminster legislation.
After the Prime Minister’s agreement was announced, this criticism was noticeably mooted. That was partly because the document promised things, like dual regulations for food in Northern Ireland and taking back control of state aid, that the EU previously insisted were impossible. With all the spin and bluster, it took a little time to identify where Sunak had exaggerated his achievements.
This confusion about whether the deal was a good one, a sense of boredom with Brexit negotiations and the DUP’s prevarication combined to remove any urgency from a potential Tory rebellion. It was never likely that the European Research Group (ERG) of Brexiteer Conservative MPs, for example, would condemn the Framework for failing to restore the Union if their unionist allies in Belfast seemed uncertain on that point.
In fact, the deal does not solve many of the fundamental constitutional problems with the Protocol.
Northern Ireland’s domestic market remains under significant parts of EU law, and the Government refuses to specify which regulations it has managed to remove. New decisions by Brussels are subjected to a ‘Stormont Brake’, that could allow them to be stopped or delayed, but it will apply only in exceptional circumstances. Companies in Great Britain will still be subjected to extra costs and bureaucracy to send goods to Ulster.
Some unionists argue, nevertheless, that the Framework will at least make it easier to live with the Protocol. The deal seems intended to hide many of the sea border’s consequences from consumers. While traders will continue to struggle with extra costs and paperwork, the effects may be less noticeable for shoppers in Marks and Spencer or Sainsbury’s.
The DUP was credited by many commentators with forcing the Government and the EU into renegotiating the Protocol, thanks to its boycott of the Stormont Assembly and power-sharing executive. It may feel, though, that this tactic will start to look increasingly like failure if it is apparent that the party’s requirements have still not been met.
Then again, as the former Brexit minister, Lord Frost, said this week: ‘I think the British people would not accept this in any other part of the United Kingdom’s territory, but many seem willing to accept it in Northern Ireland.’
After such a lengthy negotiation process, some unionists feel increasingly uncomfortable pointing out the problems with the Protocol and the Framework. They know that it allows people to stereotype them and claim they will never be satisfied. Yet the DUP’s voters, who go to the polls again this spring, may not forgive the party quickly if it abandons its previous position without a convincing explanation.
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