The word salad that is the Windsor Framework has been tossed and has now settled in a way that is more appetising to Jeffrey Donaldson and the DUP. It’s the same salad. Nothing of substance has been added or removed.
We can say this with some confidence because of the quiet acquiescence of the European Commission to last week’s claim by Donaldson that “significant further advances” on the Windsor Framework had been achieved by the DUP’s refusal to buy into the deal last March and instead subject Northern Ireland to another year of political limbo.
The EU’s silence indicates there is nothing of substance in Safeguarding the Union – the 80 page document produced by the British Government last week – that was not covered in the Windsor Framework it agreed with the UK last year. The framework modified some aspects of the Northern Irish Protocol which dealt with the status of the north post the UK withdrawal from the EU.
If you boil the March 2023 Windsor Framework and its accompanying unilateral declarations down, they do two things. Firstly, they cut red tape for products entering the North from Great Britain that are not going on to enter the EU. Secondly they add a modicum of democratic accountability – the Stormont brake – to the process by which regulations in Northern Ireland must move in lockstep with changes to relevant EU legislation. This is a prerequisite for the North to be part of the single market.
Last week the DUP claimed that, thanks to its good work, that there would now be “no checks when goods move within the UK internal market system save those conducted by UK authorities as part of a risk-based or intelligence-led approach to tackle criminality, abuse of the scheme, smuggling and disease risks”.
“We will transition to a new approach which scraps the requirements in the old Protocol for both international customs paperwork and supplementary declarations,” the party claimed.
If, as seems apparent, Safeguarding The Union is just old wine in a new bottle – laced with some unenforceable undertakings by the British Government to protect the union – why has nobody called Donaldson or the DUP out on it?
This is true. But the reason is not thanks to the efforts of the DUP over the last year, but because it is already in the Windsor Framework, which states that goods going into the North from Great Britain and staying in the North would “not be subject to customs checks, except where these are necessary as part of an intelligence-led, risk-based approach”. It also removed the requirement for a supplementary declaration.
The other big win claimed last week by Donaldson was that the Northern Irish legislation will not automatically realign with EU regulations in order to remain in the single market. This is also a restatement of the Windsor Framework, but in more unionist-friendly terms.
The DUP pointed towards “new measures to future-proof that position” against future EU agreements and recognise the end of the presumption of dynamic alignment with EU law in Northern Ireland.
Again, all this was compatible with the Windsor Framework which introduced the Stormont brake that allows “members of the Legislative Assembly in Northern Ireland to stop the application in Northern Ireland of amended or replacing EU legal provisions that may have a significant and lasting impact specific to the everyday lives of communities there”.
As for the ending of the presumption of dynamic alignment, the mere existence of the brake removes the presumption.
If, as seems apparent, Safeguarding The Union is just old wine in a new bottle – laced with some unenforceable undertakings by the British Government to protect the union – why has nobody called Donaldson or the DUP out on it?
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According to Donaldson, an opportunity to “test” the Stormont brake will arise within a month of the Assembly sitting because there “are some changes to EU law coming down the track”. It’s not clear what testing the brake means, but there is an implicit threat to the effect that if it doesn’t work then there will be trouble.
But even this is something of an empty threat. The Windsor Framework – which is the document that counts – makes its clear that the brake is only to be used sparingly, if at all.
“This mechanism would be triggered under specific circumstances in a very well-defined process. The Government of the United Kingdom would operate the mechanism in a way that is consistent with the safeguards set out in the 1998 agreement and its subsequent implementation agreements,” according to the framework.
If Donaldson wants to trigger the brake, he needs the support of 30 of the 90 members of the assembly. His party has 24. He would need the backing of the Ulster Unionists and other independent unionists.
Playing along with the DUP’s version of events is a small price to pay for getting the Northern Irish Assembly up and running again. This is particularly true for Sinn Féin – which would be the most likely to challenge the DUP narrative
If he doesn’t get that – and it’s hard see how he would – then can he claim the brake doesn’t work – particularly if he has picked a fight over some obscure piece of EU VAT law? What happens then? Would he collapse the Assembly again?
One thing is obvious. The other political parties in the North – along with the Irish and UK Government and the EU – don’t really want to find out. Playing along with the DUP’s version of events is a small price to pay for getting the Northern Irish Assembly up and running again. This is particularly true for Sinn Féin – which would be the most likely to challenge the DUP narrative. But it has been waiting two years to assume the post of first minster – a far bigger prize.
The creativity ambiguity that was the hallmark of the Windsor Framework has allowed Donaldson climb down from the petard he hoisted himself up on to last March. It also allows everybody else to let him.