The past weeks since my last post have been dominated by Rishi Sunak’s negotiations with the EU about a new agreement on the implementation of the Northern Ireland Protocol (NIP). Reports of an imminent announcement of an agreement have come and gone until today the UK Government and the EU announced that a deal has been finalised. This arguably constitutes a major event in the Brexit saga, although it remains to be seen whether the deal that has been done is a done deal.
The Windsor Framework
After Sunak met EU Commission President Ursula von der Leyen at Windsor – after months of intensive talks – an agreement has been reached that will help make the NIP workable. During a joint press conference with von der Leyen, Sunak listed three ‘big steps forward’ implied by the agreement that has been baptised the ‘Windsor Framework:’ firstly, the establishment of a light-touch ‘green lane’ for goods exported from GB and destined for NI only; secondly, agreement on certain goods - including plants and seeds as well as medicines – becoming automatically available in Northern Ireland when they have received UK regulatory approval; and thirdly – and perhaps most remarkably – the establishment of a new mechanism called the ‘Stormont Brake,’ whereby the Northern Ireland Assembly not only is consulted on changes to EU laws that apply in NI, but can actually stop EU laws from applying in NI if changes have a ‘significant and lasting’ impact on everyday life in NI. How exactly this mechanism will work remains to be seen, but it is fair to say that even more so than the ‘green lane,’ this can be seen as a significant concession by the EU.
Stormont Brake – the new art. 16?
In the joint press conference, Sunak described the Stormont Brake as a mechanism whereby “the democratically elected [NI ]assembly can pull an emergency brake for changes to EU goods rules that would have significant and lasting effects on everyday lives. If the brake is pulled, the UK government will have a veto [over new or changed EU laws applying to NI].”
In its presentation of the deal, the UK Government understandably focuses on the UK’s veto-right over EU law. Meanwhile, the EU’s explanation of the Stormont Brake stresses that this mechanism would be triggered under the most exceptional circumstances and as a matter of last resort, in a very well-defined process set out in a Unilateral Declaration by the UK.
In several respects, the Stormont Brake seems reminiscent of another Brexit creation, namely the famous Art. 16 of the NIP. For one, like the NIP the Stormont Brake seems to be based on a relatively vague definition of ‘significant and lasting’ effects of EU law on ‘everyday life’ in NI, which seems to be the threshold for the Northern Ireland Assembly to invoke it. For the other, it seems obvious that – just like Art. 16 – the Stormont Brake could easily be weaponised by Brexit ultras to threaten the EU whenever they do not like some of the consequences of their Brexit.
An important pre-condition for the brake to apply, however, is that the power-sharing executive at Stormont is restored. It therefore increases pressure on the Democratic Unionist Party (DUP) to back the deal and to abandon its boycott to participate in the executive. Other NI parties, however, have voiced concerns about the impact of the Stormont Brake, which some fear will provide nationalist parties with a veto. Indeed, while it will take some time for details about the functioning of the mechanism to be clear, it may well be that it creates a tension with the principle of the cross-community vote.
Still, however limited its use may turn out to be in practice, the Stormont Brake seems like a remarkable achievement for the UK Government. No doubt, Brexiters will put down to intransigence and hardball negotiation tactics and possibly the threat of the Northern Ireland Protocol Bill. In reality, the concession may simply illustrate just how seriously the EU takes the situation in Northern Ireland and therefor is ready to grant concessions it would not otherwise grant. Northern Ireland does indeed constitute a remarkable piece in the Brexit puzzle.
The Northern Irish Brexit paradox
The way in which we got to this point is revelatory of the sort of politics Brexit has created – and Northern Ireland is the most revelatory case in this respect.
Let us remember that in the Referendum Northern Ireland voted overwhelmingly (55.8%) against Brexit and was taken out of the EU against the will of a majority of NI voters. In other words, a major constitutional change with far-reaching consequences was imposed on the nation against its people’s explicit will. The only group of parties who were in favour of leaving the EU – unionists and in particular the Democratic Unionist Party (DUP) – are also the ones who now vigorously oppose the arrangements made necessary by the Brexit they voted for. Indeed, the NIP is the logical consequence of the hard Brexit they supported, but that they now say they cannot accept. That position is even more astonishing given that at least economically, for most businesses in NI the NIP is actually working. Indeed, the widely-publicised ‘problems’ created by the NIP concern primarily exports from GB to NI, who have to deal with new border formalities at the Irish Sea border, while many businesses in NI benefit from the unique position inside the EU single market for goods and inside the UK’s domestic market. Indeed, Northern Ireland seems to be the only region of the UK that is actually benefitting from Brexit in economic terms, seeing growth rates four times as high as the rest of the UK. This of course makes perfect sense: Establishing a business in NI allows you to serve both the UK and the EU markets with minimal trade formalities. Consequently, the additional costs of administering the new border checks (estimated last year at £200m) are outweighed by the extra trade with the Republic of Ireland (£1bn) and the rest of the EU. The positive effect of the NIP on the NI economy would most likely become even stronger once the uncertainty about its future is removed, encouraging more GB and EU companies to invest in NI. In fact, Northern Ireland, seems to be the only region of the UK where ‘levelling up’ is happening – although not due to the Government’s ‘levelling up’ policy, but rather as an unintended consequence of the particular position NI has inside both the EU’s SM for goods and the UK’s internal market.
So, a region that strongly opposed leaving the EU, is now the region that most benefits from it, although not because of leaving the EU, but because it is the only region that left the EU’s single market only partially. Furthermore, those parties that supported Brexit seem to be struggling with the new situation more than those – nationalist – parties who opposed it, but now have a much stronger case for Irish reunification than before.
Sunak’s most significant achievement
If Sunak manages to get the DUP to back his deal and abandon its boycott of the Stormont power-sharing executive, this would certainly be his most significant achievement as politician to date. He has obtained concessions from the EU that go beyond anything that other Brexiters’ before him had obtained, including not only the Stormont Brake but also the European Court of Justice’s (ECJ) role being softened, a reshape of rules on VAT and on government subsidies for businesses. The acceptance by the EU of the principle that goods destined for the Northern Irish market should be treated differently from goods destined to the EU market is a particularly significant breakthrough. This so-called green lane, red lane system, where goods destined for NI will be subject to softer-touch formalities and checks than good destined for onwards export to the EU has been made possible by assurances from the UK that real time data will be exchanged with the EU and border control posts (BCPs) will be established. In practice, for those goods that will remain in NI, this system would make the Irish Sea border very thin. Getting the deal through the Commons would allow Sunak to claim that – at least regarding NI – he got Brexit done (in the sense of providing workable solutions for the problems Brexit itself has created).
And yet, here again, Brexit leads to a paradoxical situation where rather than bragging about his skills to negotiate as good a deal as the situation would objectively allow, Sunak seemed until the very last minute to be worried about claiming a successful conclusion of negotiations. In various interventions last week – when there was talk about an agreement being imminent – he insisted that negotiations were by no means done. Brexit politics rewards unreasonableness and boosterish grandstanding, but punishes political pragmatism and realism.
Sunak’s stance is of course largely explained by internal Tory party politics. The European Research Group (ERG) and other Brexit ultras in the Tory party as well as the Democratic Unionist Party (DUP) in NI are likely to reject any deal that does not meet their maximalist demands. In particular, if the DUP insists on its ‘seven tests’ for an acceptable solution to the issue of the Northern Ireland trade borders with GB and the EU, there is no chance that Sunak’s current deal will be deemed acceptable. That in turn will mean the DUP will continue boycotting the Stormont Executive, which would mean the political situation in NI remains very precarious.
The paradox of Sunak having made major progress on solving the NIP issues, but not owning up to it until the last minute is symptomatic of post-Brexit Tory politics, where the party is held hostage by its extremist fringes. Here, it does not help that Sunak may have some common sense and pragmatism, but is a very inexperienced politician as Anand Menon pointed out in an article in the Independent. His strategy of negotiating the deal in secret with very few details being shared with what will be its main opponents – the ERG and the DUP – may indeed have been a bad strategy. At the same time, it is doubtful whether the agreement could have been achieved had the extremist red lines been included in the negotiations. To some extent, Sunak’s weak position within the party – due to the need to call a General Election in 2024 and due to the Tory’s trailing behind Labour in opinion polls – may turn out to be his biggest strength. Given the currently unlikely prospect of a GE victory, he really does not have that much to lose and might as well gamble on getting the NIP issue solved to have some sort of legacy. This may make him bolder than he would otherwise have been in confronting the ERG and the DUP.
A watershed moment
Whatever happens in the coming days or weeks, today’s agreement marks a watershed moment in Britain’s post-Brexit journey. For the first time at least since 2019, there are signs that the UK government is serious about solving some of the issues caused by Brexit, rather than just exploiting them for political benefit. For the first time, a workable solution for the most delicate post-Brexit issue – peace in Northern Ireland – is within reach. A key question now is: How will the Brexit ultras and Unionists react? They now essentially have a choice between choosing what Chris Grey has called the ‘rapprochement’ path and the ‘Brexit repetition’ path. In the first instance, the hatchet is buried and relationships with the EU slowly go back to something more cooperative and closer than they have been since 2016; in the second one, Brexiters make sure the relationship with the EU ‘would be one of permanent hostility, resentment and suspicion.’ Accepting Sunak’s NIP deal would send a strong signal that we may be moving towards the former. Rejecting it, would be a major setback and may indeed reignite the acrimonious battles of 2019.
As such, Sunak’s victory may only be short-lived. His deal does not end European Court of Justice (ECJ) oversight of the implementation of the NIP, nor does it completely remove the Irish Sea border - let alone the NIP itself. All of these are red lines for Brexit ultras in the Tory party and for the Democratic Unionist Party (DUP), which may mean the framework is already dead in the water.
Over the past days, Brexit ultras in the ERG – like Mark Francois – have reiterated their maximalist position that that any role for the ECJ in overseeing the protocol and the application of EU law to NI would be unacceptable. Similarly, the current agreement clearly does not pass all the seven tests set out by the DUP, as the Irish Sea border as well as ECJ jurisdiction over EU law remain. The DUP may be tempted into backing the deal, among other things because the Stormont Brake only applies if power-sharing resumes. Yet, the fact that its competitor unionist party the right-wing Traditional Unionist Voice (TUV) has already publicly stated that it will reject the deal may create pressures for the DUP to do the same, lest it will lose voters to the TUV. That may not bode well for Sunak’s deal.
Another danger for Sunak’s deal is the importance it has for Boris Johnson’s renewed bid to become PM again. Johnson was not in the Commons today and has not made any public statement whether he will back the deal. He is said to ‘study and reflect’ on the agreement. However, earlier today, his possibly closest ally Nadine Doerries was fuming about former ‘Brexit Spartan’ Steve Baker who seems to be backing the agreement. That may give us some sense of where Johnson himself stands. Indeed, it is hard to see how backing the agreement would in any way be favourable to Johnson’s immediate personal interests, given that it would mean that he would concede both the failure of the NIP he signed and the NIP Bill he introduced. Since his personal interest is all he is interested in, it is probably safe to say he will not be backing it.
His recent interventions on the subject suggest as much. Last week, zombie politician Johnson intervened in the negotiation process by warning PM Sunak against abandoning the Northern Ireland Protocol Bill which Johnson introduced and which would have allowed the UK to unilaterally suspend parts of the NIP. Had that bill to passed into law, it would have breach international law and quite possibly lead to a trade war with the EU as a result. Brexiters like Penny Mordaunt found Johnson’s intervention ‘not entirely unhelpful’ based on the usual Brexiter trope that to get anything from the EU you need to have your hand hovering over the proverbial red button.
In reality, Johnson’s intervention is completely dishonest, as its only purpose surely was to undermine Sunak in the hope of preparing the way for his own comeback as PM. That at least is how senior Tories like Lord Mendelson and George Osborne interpreted the intervention. Indeed, Johnson’s role in the NIP is yet another Brexit paradox. The person who signed the NIP, praised himself for negotiating it, and considered it "a great deal for our country" has now become its main detractor.
However, there are signs that another faction of Brexiters may take a more favourable position towards the Windsor Framework. David Davies hailed the new agreement as a ‘spectacular negotiation success,’ essentially claiming that it gives the UK the special treatment Brexiters always said the UK could have (in the form of the Stormont Brake which is ‘without international precedent’). This pragmatist position may be quite attractive to Brexiters in the Tory party. Not only would it allow them to – once again – decry as fearmongers anyone who doubted the possibility of far-reaching concessions from the EU, but also the deal may provide Sunak with an unexpected boost ahead of the 2024 General Election.
The Windsor Framework would considerably improve relationships with the EU and the Biden administration in the US, averting a trade war with the EU and a falling out with the US ahead of the Good Friday Agreement anniversary in April. Concretely, it would most likely mean the UK would participate in the Horizon research programme after all, which constitutes a major concern for UK universities that have seen EU funding drop. Electorally more importantly, by dropping the Northern Ireland Protocol Bill, his chances of getting France’s Emanuel Macron to agree to a deal to prevent small boats from crossing the English Channel may be significantly improved.
Taken together, Sunak could go into the GE campaign claiming to be the one who actually ‘got Brexit done’ and who also did something about illegal immigration which of course Tory voters feel strongly about. The prospect of this change of fortunes may push some moderate Brexiters to back him and his deal.
Some Tory strategists expect the ‘rebellion’ within the party to be limited. Even if it were large, the deal may still pass the vote in the Commons which Sunak has promised due to Labour’s support. Having to rely on the opposition to pass the deal, however, could seriously damage Sunak’s premiership. Once again, the country seems to be held hostage by the internal power struggles in the Tory party.
Damage limitation
The Windsor Framework is far from a done deal. The coming days and weeks will see important players make up their minds whether or not to back the deal and vote for it in the Commons. Whatever the outcome – the start of rapprochement with the EU or a Groundhog Day of 2019-style Brexit tensions – one thing we should not forget is that all the efforts made to reach this deal; all the civil service and political resources committed to it; all the attention and time spent on negotiating it, still only served one purpose: Limiting the damage Brexit has done to the country. It is heart-wrenching to think what else UK and EU politicians and official could have done with these precious resources had they not been tied-up by the never-ending and futile Brexit project.