28 February 2023

Windsor knot: unionists will need time to work out just what Sunak’s Protocol deal means


The Government finally reached an agreement with the EU yesterday – one it claims will solve the chief problems with the Northern Ireland Protocol. Rishi Sunak and Ursula von der Leyen, the President of the European Commission, unveiled the ‘Windsor Framework’ at the town’s historic Guildhall.

The Protocol, which has been in place since January 2020, was the unwanted bastard that Boris Johnson fathered knowingly, but thought he could get rid of later. It cut Northern Ireland off from the rest of the UK’s economy and surrendered authority over swathes of life in the province to the EU, so that he could claim to have delivered Brexit for most of Britain.

Unionist politicians from Ulster are now examining the details of Sunak’s deal. As they assess its merits, though, they will remember the claims that the Government made originally about the Protocol. That it would not create an Irish Sea border, that Johnson would personally ensure any extra paperwork went straight ‘in the bin’ and that single market rules and customs checks would apply only to a tiny number of obscure goods, like exotic animals and dangerous weapons.

When the Protocol was implemented, these deceptions fell apart, and the EU was soon performing more checks on goods coming from Great Britain to Northern Ireland than it conducted on its entire eastern boundary.

The Irish Sea border, as it was conceived, was never fully implemented, but the burden of paperwork still caused many British companies to stop selling to Ulster altogether, or to pass on extra costs to consumers. Brussels threatened to disrupt the roll-out of Covid vaccines to the province, the supply of other everyday medicines became uncertain and previously commonplace goods disappeared from retailers’ shelves.

Most of all, though, unionists were dismayed by the constitutional implications of the Protocol. The sea border effectively disapplied critical sections of the Acts of Union, the founding document of the United Kingdom. Northern Ireland was subjected to EU rather than British product regulations and it remained under the jurisdiction of Brussels’ courts, as well as much of the body of European law.

Sunak claims to have dealt with most of these problems, either completely or in part. The creation of a ‘green lane’ is supposed to allow goods, including food, seeds and parcels, which previously caused particular problems, to move freely to Northern Ireland from Great Britain. They will be exempt from most customs checks and the goal is to cut paperwork dramatically, although companies will have to sign up for ‘trusted trader’ status to use the system, which implies some bureaucracy will persist. Last night I spoke to an expert in the haulage industry, who expressed apprehension that, according to the Prime Minister, 5% of visual checks would remain.  

The Government says that it has wrested control of VAT and state aid rules back from the EU, which would be a significant achievement. It has also portrayed an ‘emergency brake’ for the Stormont Assembly on new EU law for Northern Ireland as an answer to the so-called ‘democratic deficit’, which sees unaccountable officials in Brussels drafting rules for the province. Thirty of the province’s MLAs could trigger the brake, in a mechanism similar to the cross-community ‘petition of concern’ safeguard, and suspend measures from Brussels.

Northern Ireland’s largest unionist party, the DUP, has pledged to go through the text line by line with its lawyers, before deciding whether it meets its ‘seven tests’. Sunak hopes that the deal will persuade its leader, Sir Jeffrey Donaldson, to lift his party’s boycott of the Northern Ireland Assembly.

So what is Sir Jeffrey looking for? The DUP will need to be convinced that the content is legally enforceable, rather than dependent upon Brussels’ good will, and that a regulatory border will no longer exist down the Irish Sea. If EU laws still apply to Northern Ireland’s domestic market it will be difficult for unionists to argue that their full place in the UK has been restored.

The Government’s paper claims that it has set aside 1,700 pages of single market rules, meaning ‘UK, not EU, standards and regulations apply for essential retail trade and tax’, but it will take time to tease out exactly what that means. What precisely is included in the 3% of Brussels’ rulebook that it says is still necessary to provide the province with single market access?

Separatist parties in Northern Ireland were always keen on the Protocol, because it promised to untie the province’s links with the rest of the UK and create an ‘all-Ireland economy’, which was previously the stuff of nationalist fantasy. The pro-EU middle-ground, and in particular the Alliance Party, was equally enthusiastic, because the Protocol prioritised ties with Brussels over links with Great Britain.

Weeks ago, these parties indicated that they would welcome any agreement, irrespective of what it contained. They are strikingly quiet now about their previous insistence that the Protocol should be ‘rigorously implemented’, implying dishonestly that they always wanted it reformed.

While the DUP is frequently depicted as intransigent and unreasonable, significant sections of the party are thought to be open to a deal. Rather than points of principle, it is possible that Sir Jeffrey’s decision will be guided by whether he can realistically sell an agreement to grassroots unionists, particularly in the face of an electoral challenge from Jim Allister’s Traditional Unionist Voice, which is less open to concessions on constitutional details.

While unionists will still be worried that Sunak’s deal does not repair the Union, there are those who argue that turning it down and refusing to go back to Stormont would ultimately damage their place in the UK more. At the same time, the DUP’s stance on power-sharing galvanised the Government and caused the EU to renegotiate elements of the Protocol that it said could never be reopened.

Most of all, though, many people in Northern Ireland will be aware of the misleading claims that were made of previous deals and the subterfuge that accompanied much of the Brexit process. Once experts scrutinise every line of the deal in detail, they will hope to have some grasp of what it means. Traders and politicians, in particular, will want to know more about how this agreement will be implemented.

After that process, the ‘Windsor Framework’ is unlikely to become anyone’s favourite child, but Rishi Sunak will certainly hope it never becomes the ghastly, malformed secret in his basement.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.