The DUP has almost no hope of blocking new EU single market legislation in Northern Ireland so why did it apparently try in Stormont on Tuesday?
Firstly, because it had promised to do so. In January leader Sir Jeffrey Donaldson said his party would test the Stormont brake within a month of devolution being restored. Tightening up the brake is supposedly a key achievement of the DUP’s recent Stormont boycott, extracting clearer legal processes from London on how unionists (and nationalists) can halt the automatic application of EU law.
It has now been six weeks since Stormont was restored. The first opportunity for a test has arisen with a new EU regulation to protect geographic indicators for craft and industrial products, such as Italian Murano glass or French Limoges porcelain. Failure to act would have missed Donaldson’s deadline and exposed the party to renewed criticism from unionist opponents.
Secondly, the DUP has never promised this test would block an EU law. The party has only said it will show Stormont has been given “democratic scrutiny” and “the ability to have a say”.
There is no question the Brexit protocol created a democratic deficit in Northern Ireland. Everyone should welcome a demonstration that last year’s Windsor Framework deal, which introduced the Stormont brake, provides some meaningful correction. The brake comes in two forms, for amended or new EU legislation, but both end the same way: if there is no cross-community support for the legislation in Stormont, Westminster has a duty not to enact it into Northern Ireland law. The British government can only disregard this duty under “exceptional circumstances” or if the legislation does not create a new regulatory border in the Irish Sea.
Should the British government not enact the legislation the EU is entitled to take proportionate retaliation. However, there should be UK-EU talks on a compromise. Stormont may have no veto over EU law but it can oblige a sovereign government to break an international treaty affecting the EU single market, on terms the EU has agreed to tolerate. This is a remarkable privilege for a regional assembly in a third country, even in theory.
It may also be useful in practice. The British government has produced a memorandum arguing the new EU law will have only a “limited” impact on the UK internal market. Tellingly, its reasons include a similar law in Britain and the reluctance of British firms to diverge from EU standards.
Because the brake has been pulled a minister must explain this to parliament. They might make a convincing case, soothing unionist nerves. If they cannot explain away every impact we will discover how willing the UK is to set aside parts of an EU law and what Brussels considers a proportionate response. It might be minor enough for everyone to live with.
There appears to have been co-ordination over the brake test so efforts may be made to give the DUP something in this instance, or at least to spare it humiliation.
But the test is hardly taking place in a unionist bubble. The SDLP says the new EU law will be important to craft industries in Northern Ireland, such as linen and pottery. Sinn Féin, the SDLP and Alliance fear the DUP will object to every new EU law on unionist principle, creating damaging uncertainty for business.
Ideally the executive would have an economic strategy against which it could assess each new EU law, making objective judgments on what Northern Ireland might gain, lose or try to change.
In reality the DUP has indicated its overriding priority is the sea border. Nationalists have become such Europhiles they back EU law by default. Tuesday’s vote was a tribal split, with every unionist for the brake and everyone else against. There was no serious engagement with the detail of the law.
The danger for the DUP is that even success as the party defines it will leave the unionist electorate cold. Donaldson’s case for restoring Stormont was the urgency of tackling mounting governance problems that were undermining the union. People struggling with failing public services might watch the DUP grandstanding over regulation of Italian glassware and find the spectacle preposterous even if they find the sea border an outrage. Repeat performances would not be appreciated.
The only sustainable approach to mitigating the sea border is to support an incoming Labour government as it tries to align the UK more closely to the EU.
In the meantime Stormont’s oversight of Brexit is via baroque arrangements negotiated by a dying Conservative government as a bizarre era of British politics draws to a close.
The DUP’s best option is to say the brake has been tested and Stormont can use it again if necessary, then move swiftly on. The rest of the world has moved on already.