Colin Murray (Newcastle Law School)
The Windsor Framework continues to bubble into the headlines. Part of this is the challenge of making the complex interlinkages between the UK and EU goods regimes work in the context of Northern Ireland’s small market. As laws made by Brussels and Westminster continue to diverge after Brexit, and Northern Ireland continues to be subject to EU product standard rules, new developments like the entry into force of the EU’s General Product Safety Regulation produces new requirements for traders from Great Britain to navigate in selling into Northern Ireland.
Layering complexity into this picture, however, comes a fresh effort by the Traditional Unionist Voice leader Jim Allister to see Westminster legislate to replace (at least as a matter of domestic law) the operation of the Windsor Framework’s goods rules, and the first Democratic Consent motion (“Stormont Lock”) vote under Article 18 of the Windsor Framework. The latter vote has long been on the horizon, the former is the result of Allister, new to Parliament, securing a high place in the draw for private members’ bills. This confluence of events makes for a confusing flurry of stories to unpick.
Article 18 was a late addition to the special post-Brexit trade rules for Northern Ireland. It was introduced by Boris Johnson to rectify the lack of input by Northern Ireland into the trade rules operative within the jurisdiction which had been a much-criticised feature of Theresa May’s draft of the Withdrawal Agreement. Johnson’s Withdrawal Agreement was accepted by the UK Parliament, giving the Northern Ireland goods arrangements (Articles 5 to 10) initial democratic legitimacy, and then the Article 18 votes by Stormont, which take place at least every four years, allow Stormont to regularly approve of these measures being kept in place.
Northern Ireland’s Unionist parties, from the very announcement of the Johnson Withdrawal Agreement, have cried foul. The Assembly Article 18 vote can continue the Windsor Framework’s goods rules on the basis of a majority vote. This vote does not require cross-community consent, a process which requires majority support from amongst representatives designating as both Unionist and Nationalist. The parties in Stormont can, ordinarily, use the petition of concern mechanism to require a cross-community vote on issues within the devolved competences.
Cross-community voting was a feature provided for as part of the 1998 Agreement, to stop the majority community in Northern Ireland from using Stormont’s law-making powers to undermine the interests of a minority. What was a majority Unionist Assembly in 1998, however, has become following the 2022 elections, a legislature in which only 37 of the 90 MLAs designate as Unionist. The set position of the Assembly’s Nationalist parties, and the Alliance Party (which does not designate as Nationalist or Unionist), on the Windsor Framework means that it is a foregone conclusion that the Article 18 vote will pass.
This situation is not, however, a breach of the 1998 Agreement. Trade rules are not ordinarily devolved to Stormont, and so this vote amounts to a special process distinct from the operation of the rules around Stormont’s law-making competences. The complaint that the whole process, under schedule 6A inserted into the Northern Ireland Act 1998, is somehow anti-democratic also rings hollow; Northern Ireland’s law makers have a regular say on the continuation of EU goods rules. What it really amounts to is a demand for a minority veto. In fact, majority rule is how mature democracy is supposed to work.
The problem is that, with the outcome of the vote known in advance, there is no cost to grandstanding over the Article 18 vote. Jeffrey Donaldson had, to an extent, been seen to tolerate the Windsor Framework in restoring Stormont after the Safeguarding the Union deal. It might have been, at least, awkward for the DUP to explain its rejection of the Windsor Framework arrangements in the Article 18 vote had he remained leader. His downfall, amid criminal proceedings relating to sexual abuse allegations, gave his successor free reign to be seen to openly reject the continuation of the application of EU goods rules to Northern Ireland.
The Unionist parties are thus able to indulge in voting to abandon the special rules put in place for Northern Ireland knowing that they will lose the vote and thus do not have to consider whether a meaningful alternative can be put in place. Jim Allister’s private member’s bill is notionally based around replacing the application of EU goods rules in Northern Ireland with UK/EU “mutual enforcement” of each other’s goods requirements. This has the advantage of sounding like the application of some sort of legal standard. But mutual enforcement of general goods standards is not existent anywhere in the world. It does not allow for effective border management; as goods are produced to different standards there is nothing to prevent leakages of sub-standard goods between markets (indeed, efforts to seek competitive advantages encourages it).
This carnival of legalese would not be complete without the last minute efforts of Jamie Bryson to bring a judicial review against the operation of the “Stormont Lock” vote. This challenge’s central contention was that this Assembly vote, in continuing the application of Article 18, amounted to a violation of the new statutory protections for Northern Ireland’s place in the UK’s customs union enacted as part of the Safeguarding the Union deal. But these new protections did not explicitly alter schedule 6A of the Northern Ireland Act, and there was no ground to suggest they were ever intended to impinge upon its operation. The judicial review application was thus dismissed as having no reasonable prospect of success.
Within this whole process, a strange crossover point has been reached. Nationalist parties have long been accused of wanting to see Northern Ireland fail. But all of the Unionist efforts to keep these Brexit disputes alive sees the Northern Ireland economy get locked into a cycle of instability. Any potential inward investors would be justified at looking askance at a system of goods rules regularly threatened with upheaval and institutions in which coalition governing parties can barely discuss the implications of Brexit let alone cooperate over them.
If the Article 18 vote holds out any hope, it is that it potentially draws a line under these seemingly intractable debates for another four years, and give the whole system a break from the resultant instability.
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. X: @CRGMurray / BlueSky: @colinmurray.bsky.social
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.