Colin Murray (Newcastle Law School)

The Safeguarding the Union arrangement between the DUP and the UK Government has finally secured the resumption of power sharing in Northern Ireland. By ending the DUP boycott and restoring functioning governance to Northern Ireland, a goal which for so long seemed so unachievable, the deal guaranteed Rishi Sunak a favourable round of headlines. What remains to be seen, however, is whether the deal is durable.

The pity of the deal lies in just how limited an adjustment to the Windsor Framework it involves and how the UK Government has felt the need to bend itself to the whims of one party in Northern Ireland to achieve it. Beyond elements of window dressing (restrictions of the activity of future UK Governments that impact more upon the form than the substance of policy) the developments regarding tariff rate quotas and restricting the operation of risk-based checks could at best be characterised as the outworkings of the Windsor Framework agreed between the UK and the EU in February 2023, rather than some sort of new deal. 

The Windsor Framework was always likely to evolve as both parties became used to the risk-based model of checks it involved and the data-sharing arrangements became embedded. Behind the fanfare, therefore, last week amounted to a relaunch of the Windsor Framework and an update of how it is working. Indeed, elements of the new deal remain to be formally signed off by the EU-UK Joint Committee. In between time, Northern Ireland has suffered from the absence of devolved government and swingeing austerity budgets imposed by Westminster. The deal which the DUP was so reticent about a year ago is essentially the one that it accepted last week.   

This makes much of the florid praise for the ‘leadership and determination’ of Sir Jeffrey Donaldson appear misplaced; a resounding cheer for the last horse to cross the line. But when the DUP’s two-year boycott is considered in the round, succumbing to that reaction lets the UK Government off the hook. Under Boris Johnson’s premiership, the DUP boycott was encouraged as a means to force concessions out of the EU. The problem with the Windsor Framework deal, when it eventually came, was that Rishi Sunak had to devote so much attention to trying to outmanoeuvre hard-line Brexiteers in his own party, not least the opportunistic Johnson himself. The deal with the EU therefore had to be done behind closed doors, being presented to the Northern Ireland parties as a fait accompli. 

Johnson had long stoked Unionist concerns that any differentiation between the way in which Brexit applied to Northern Ireland and the rest of the UK represented a threat to the Union. The irony, of course, is that it was his approach to the deal that he negotiated which generated the most extensive barriers to trade in the Irish Sea. After the Protocol was negotiated, UK-wide alignment with EU plant and animal health rules would have negated many of the most onerous checks on trade across the Irish Sea. 

The DUP had, after all, initially backed Johnson’s Protocol and were left hoping (and privately lobbying) for “Swiss-style” alignment through much of 2020 to make the Protocol workable in the Northern Ireland context, but Johnson had no intention of delivering this outcome in the Trade and Co-operation Agreement. For Johnson’s Government, post-Brexit freedom of action with regard to Great Britain trumped any concern for the implications for Northern Ireland. The DUP were then persuaded to back Johnson’s Protocol Bill to deliver the Brexit they had always dreamt of, only to see that bargained away as part of the Windsor Framework negotiations.

Having been repeatedly burned by the UK Government, it can hardly be surprising that there was not immediate DUP acceptance of the deal proffered by Sunak. And it is no surprise that the centre piece elements of Safeguarding the Union seek to tie the hands of the UK Government against divergences which would create difficulties for Northern Ireland. It became a Brexiteer trope during the Protocol debates that EU legalism was a poor fit for Northern Ireland; but legalism can bring with it binding safeguards in treaty arrangements. The DUP’s bigger challenge (and it is one which the new arrangements do little in substance to address) has been tying down a UK Government able to use parliamentary sovereignty to overwrite inconvenient commitments.  

The DUP’s reticence was exacerbated by the electoral threat of being outflanked by the TUV. After being left with egg on its face so many times since the Brexit referendum, the DUP leadership were acutely aware that Jim Allister’s party could eat into its core vote by presenting themselves as more effective defenders of the Union. But for all of the nighttime posting of signs decrying the “DUP sellout”, the last week has exposed those warning of the supposed threat to the Union as being on the margins of Northern Ireland politics. There have been no mass protests to block the DUP deal, and the speed at which the Assembly and Executive have been restored have emphasised the position of Allister as the sole TUV representative.

This is not to say that Allister has lost all capacity to influence events. Jeffrey Donaldson has talked up the possibility that an opportunity will come to pull the Stormont Brake – the mechanism by which 30 or more MLAs from two or more parties can warn that an instance of alignment with new or amended EU Law would cause a “significant impact” upon Northern Ireland – within a month. In doing so, he is putting himself under considerable pressure to use the Brake quickly, simply to demonstrate that it is effective. Moreover, because not even the DUP and TUV combined can pull the Brake, this will ultimately generate renewed pressure upon the UUP to fall into line for the sake of “Unionist Unity”.

After years of neglect of Northern Ireland’s public services, and months of febrile politicking within Unionism, a knee-jerk lurch to use the Brake at any and every potential opportunity would be hugely destabilising for Northern Ireland. It would plunge the institutions back into a cycle dominated by the aftermath of Brexit. Now that the weakness of Allister’s position has been exposed, the other Unionist parties must attempt to avoid the trap of letting his preferred issues dominate the policy agenda, or they will be inviting an inevitable resurgence in the TUV’s fortunes. 

There are going to be cases in which the Brake provides a powerful tool by which to ensure that applicable EU law is adapted to the needs of Northern Ireland. It would be best not to blunt it through overuse, but rather to seek consensus on its application. The profound danger with Safeguarding the Union is that it is a bespoke deal to address the demands of one party in Northern Ireland. Once this path has been adopted, it encourages the threat of a boycott whenever either Sinn Féin or the DUP feel under pressure. If Northern Ireland is lucky, however, the operation of the elements of EU law which remain applicable after Brexit will be allowed to fade into the background of the policy agenda. 

Colin Murray is Professor of Law and Democracy at Newcastle Law School. His research tackles pressing challenges within the UK’s democratic constitutional order, including prisoner disenfranchisement and the right to vote, the UK’s treatment of the Chagos Islanders, the human rights implications of special counter-terrorism powers and the consequences of Brexit for Northern Ireland. He tweets from @CRGMurray.

 

The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.