There are a number of important signals from yesterday’s publication of the Windsor Framework document that have little enough to do with Northern Ireland per se but rather mark the beginning of the end of a Brexiteer fantasy Brexit.
There will be many concerns arising and not all of them are being expressed by unionists. Using a mechanism like the petition of concern, which has been subject of a lot of controversial issues for a close to final arbiter has raised important questions.
But fundamentally, this document looks and feels like the first steps by a UK PM to regularise its relations with a marketplace many senior pro Brexit campaigners assured the UK public it would never have to leave. Article 75 reads:
Following this deal the Government and the EU are both firmly committed to a positive, constructive relationship as partners. It is in both our interests to resolve and move past concerns with the Protocol, to focus instead on our shared priorities in Europe and on the global stage.
With the Windsor Framework, the UK and EU have found a sustainable basis on which we can consider those concerns to have been addressed. The Government will therefore not be proceeding with the Northern Ireland Protocol Bill.
In turn, the EU will not proceed with the seven separate legal actions it has launched against the United Kingdom – on issues from parcels to pets – reflecting the shared desire for a positive bilateral relationship now and into the future.
It seems to me that this is not lightly arrived at, and is unlikely to change in any substantial way if and when the reins of power pass over to a new Government at Westminster (see that Ditchling conference a few weeks back).
Much as the framing of this agreement allows for time out for parties like the DUP to consider their own future actions in the round, there’s also a sense that whatever happens in Northern Ireland, the way now opens for sorting out the rest of the UK.
With the Protocol Bill in the legislative bin, the option of using the internal opposition within the UK’s governing party by proxy to resile to something harder now all but disappears. Indeed, the closing passages all read like a polemical tract on the matter.
Narrowing the applicable EU rules to less than 3% overall by the EU’s own calculations, “in order to maintain the unique ability for Northern Ireland firms to sell their goods into the EU market” also reduces the role of the ECJ to that same extent.
The new agreement allows state aid except where it would have “a material effect on trade between Northern Ireland and the EU”, but subject to stringent set of tests to examine how genuine those effects might be. Subsidy controls are otherwise gone.
In more substantial terms however, you could almost read this document as a sort of Belfast Agreement for Brexit. There’s no hint of rejoining of course so much as a commitment to manage the issues as they arise (making use of the brake less likely).
Article 69 outlines new structures:
- We have agreed to establish new mechanisms for stakeholder engagement within those structures, including business and civic society groups, to ensure their expertise and insight can inform discussions about how the agreement operates in practice.
- We have established new structured expert groups to allow detailed UK-EU discussion of new rules applied under the Protocol across the full range of issues, including on goods regulation, the Single Electricity Market, customs, agrifood and subsidy control – with new commitments to engage earlier and more intensively to look at the implications of new rules.
- And we have developed specific new mechanisms to look at the potential impacts on the UK internal market of new goods, VAT and excise rules in particular, enabling the Joint Committee to take forward any action as necessary.
- In addition, the UK reaffirms its guarantee that the First and deputy First Minister will have a seat at the table in the UK delegation for any UK-EU Joint Committee meetings which consider matters concerning Northern Ireland – a key request from across the Northern Ireland political spectrum.
The logic for cross community consensus as a Stormont Brake is that the current majoritarian vote is too weak to get proper buy in across both main communities. In addition it only happens every four or eight years and can’t apply to individual statute.
Under the Protocol as it stands, those rules are applied automatically. When the institutions are restored, the trigger for the Brake will operate on the same basis as a separate ‘Petition of Concern’, even on parts of a directive handed on by Brussels.
In principle it is an opt out clause for which no penalty will apply if the PoC is successful. In practice, it remains to be seen how adventurous our legislators feel in triggering controversy over regulatory rule changes widely consented to across Europe.
The bar for triggering a PoC is, like article 16, a high one:
The Brake will not be available for trivial reasons: there must be something ‘significantly’ different about a new rule, whether in its content or scope, and MLAs will need to show that the rule has a ‘significant impact specific to everyday life’ that is liable to persist.
Practically speaking the Brake would operate constitutionally:
- Through the Stormont Brake, rules otherwise applied automatically under Article 13(3) would be subject to a UK-EU Joint Committee decision before they could apply in Northern Ireland. That 13(3) process applies to rules that are already within scope of the Protocol that are amended or updated. There is also, though, an existing process – under Article 13(4) of the Protocol – where the EU proposes to add new rules into the Protocol. In those cases, it is already a sovereign decision of the United Kingdom, through the UK-EU Joint Committee, whether the rule in question should apply in Northern Ireland.
- We recognise, though, that the Northern Ireland Assembly would potentially have just as strong a set of views on those new rules as those covered by the Brake, not least as they could expand the scope of where EU rules apply in Northern Ireland. In bringing forward this agreement we are also committed to providing a proper say for Stormont there too. As such, the proposal that we will put forward for discussion with the parties in Northern Ireland is that the Government would commit to the same constraints, in statute, as proposed under the Stormont Brake. As there, this would mean that the Government would not be able to proceed to add any new rule under Article 13(4) without cross-community support, unless the Government could demonstrate that there were exceptional circumstances or confirm that the new measure would not create new regulatory borders between Great Britain and Northern Ireland. This will provide a further democratic safeguard for the restored Northern Ireland institutions. [Emphasis added]
The framework offers a new start, economically if not politically. Three questions for sceptics: will you get a better offer now a hard Brexit fades in the mirror. What can you do with the opportunity? To a long peace can you add prosperity?
Unionism deserves credit for standing up against a sub optimal deal that imposed unnecessary (given the limited threat a tiny market like NI was ever going to pose to the EU) in a hail of unreasoned and unreasonable criticism from journalists and rivals.
What this deal makes clear is, contrary to such claims, we did not have the best of both worlds under the protocol. But it also makes clear the gate is closing on roughneck Brexonomics and this is roughly the space in which any viable deal can be done.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty
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