Andrew McCormick sets out why honesty is needed from the UK government to end the deadlock in Northern Ireland.
Since February, Northern Ireland has been stuck in a limbo with the DUP asking for something the government cannot deliver, and the government appearing to promise to meet their concerns, despite knowing they cannot. The Northern Ireland Office (NIO) has allowed this stalemate to continue, despite the real world consequences: no Executive, deteriorating public services and worsening public finances, all shaking trust in the governing institutions.
The DUP claim, as restated by Sir Jeffrey Donaldson at Northern Ireland Questions on 21 June and at the NI Affairs Committee on 28 June, they were promised that Northern Ireland’s ability to trade within the internal market of the United Kingdom would be protected in legislation. He also restated the importance of Article 6 of the Acts of Union (1800), which guaranteed the ‘same privileges’ in relation to trade for the people of Ireland as for Great Britain. The Supreme Court has found that the Protocol (and hence the Windsor Framework) amended these provisions.
Secretary of State Chris Heaton-Harris responded with an extraordinary promise – that he hopes to bring forward legislation “…that does exactly what [the DUP] needs it to do…” for the DUP to re-enter the Executive.
There is history here. In the New Decade, New Approach agreement in January 2020, which was critical to reestablishment of the Executive after its last collapse, legislation was indeed promised on Northern Ireland’s place in the UK internal market. But there was a clear distinction between the promise on goods moving from NI to GB and what was possible for goods moving in the other direction.
The promise of ‘unfettered access’ for goods moving from NI to GB has been explicit since the Joint Report agreed between the UK and EU under Theresa May in December 2017. The promise was repeated in the Protocol in October 2019 and the Internal Market Act 2020 converted the promise in New Decade, New Approach into legislation.
While it is relatively easy for UK governments to guarantee unfettered access to the GB market for NI goods, the reverse is not true. The stumbling block from the start of Brexit has been that there is no real world model or option that provides both for the UK to leave the EU single market, and for completely unfettered access for goods moving from GB to NI.
New Decade, New Approach emphasised Northern Ireland’s place in the UK’s internal market, but conspicuously did not promise ‘unfettered access’ for goods moving from GB to NI. On the contrary, it explicitly confirmed that the Protocol would apply and it should have been very clear that that ruled out GB-NI ‘unfettered access’. The Internal Market Act did nothing to alter the Withdrawal Agreement.
The UK government’s sales pitch for the Windsor Framework is that they have secured arrangements to minimise the checks and controls – which they have.
But it is clear that, both publicly and privately, Boris Johnson promised the DUP that he would deliver what they wanted, even though that contradicted the terms of the Withdrawal Agreement. The NI Protocol Bill was the formal attempt to push that forward, by legislating to set aside some of the key provisions of the Protocol that required checks or constraints on the movement of goods from GB to NI. The Bill also raised the DUP’s expectations, not least with its reference to the Act of Union (1800).
In agreeing the Windsor Framework in February 2023, the government axed the Protocol Bill, and they have made it very clear that there will be no re-negotiation of the deal. That means the approach to managing goods moving from GB to NI settled in February is not going to change. The government must have satisfied itself that the Windsor Framework was and is compatible with its domestic and international obligations under the Belfast/Good Friday Agreement and there is a strong argument that the Framework stabilises and secures the Union more than any other realistic scenario. And as the Supreme Court showed in its decision on the challenge to the Protocol, the change from the terms of the Act of Union was legitimate. Moreover, the government could point to the fact that a majority of MLAs in the Assembly (if it were sitting) come from parties that accept the Framework.
However, the UK government still baulks at spelling out explicitly that it is not possible to bring the arrangements for trade into line with the interpretation of Act of Union that the DUP would want to see restored. It appears reluctant to point out to the DUP that the Internal Market Act did fulfil the promise in New Decade, New Approach, and that it cannot go further without re-opening the whole issue with the EU. And it has drawn back from the factual stance it took from October 2019 onwards that the issue of the Protocol did not need to be subject to cross-community consent, because it is an issue of international relations, which are not devolved, and involves agreement with the EU as well as within the UK.
It is also far from clear whether the NIO could bring forward new constitutional legislation to satisfy the DUP without breaching the 1998 Agreement, given that the wording adopted in the Northern Ireland Act 1998 was an integral part of the Belfast/Good Friday Agreement.
Tantalising the DUP with promises the government knows it cannot fulfil allows them to avoid confronting the reality that the Windsor Framework is now the settled will of the UK Parliament. Some are still indulging in ideas – like mutual enforcement – that the EU has made clear repeatedly it will not countenance.
The UK government needs to come clean with the DUP, make clear it has fulfilled its January 2020 promise and nothing more is feasible. And once they have stopped being strung along by promises they should know are undeliverable, the DUP must decide whether it will allow Northern Ireland to have its government back.
By Andrew McCormick, former Director General of International Relations in the Northern Ireland Executive Office (2018-2021).
