Friday, 2 February 2024

The DUP and back to the Irish trilemma

Details of the deal announced earlier this week with the DUP, paving the way to the restoration of the power-sharing executive at Stormont this coming weekend, have now been revealed. The consensus is that it makes a lot of noise about very little. It appears to be nothing more than a fig leaf for Jeffrey Donaldson to claim his seven tests have been met. However, the party is deeply divided since several DUP MPs spoke out against the government’s statement in the House of Commons and Lord Dodds did the same in the upper chamber.

The Command paper is certainly long, fully 80 pages of waffle with the grand title ‘safeguarding the union’, and only experienced lawyers can possibly understand the three separate pieces of legislation that came with it.  You can see all of it HERE.

The legislative changes are these:

  • The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024
  • The Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024
  • The Marking of Retail Goods Regulations 2024 and consultation proposals

Steve Peers, professor of EU law says it’s mainly "window dressing" since much of it is either already in the Windsor Framework or permitted and even anticipated by it. Professor Peers has a long blog post about the details which you can see HERE.  He also says the policy of HM government is to “announce as little as possible as loudly as possible” which sums it up well, I think.

Colin Murray, another professor of law said “I despair at how the page length of the command paper takes over from analysis. Yes, it is 80 pages long, but about three of them say something new of substance.”

The BBC's NI economics and business editor retweeted Murray:

Jamie Bryson, Director of Unionist Voice Policy Studies and implacably opposed to the whole idea of an Irish Sea border, was quickly out of the blocks with a detailed rebuttal. Out of the DUP's original seven tests, he argues just one has been met. This is the one about ensuring no regulatory barriers develop between NI and the rest of the UK. The other six have not, according to him and I'm not sure he has thought through the regulatory divergence which looks baked in to me unless the UK follows future EU laws as they come.

Of course, DUP members who support the deal will suggest that is exactly what he would say. Bryson has always maintained the position that the WF and its predecessor the NIP, need to be scrapped altogether.

However, the DUP leadership also needs to take account of the opinion of others who have no axe to grind, including Peers, Murray, and the trade expert David Henig, who Bryson retweeted:

Nigel (Lord) Dodds spoke out against the deal in the Lords:

Dodds pointed out that intermediate goods used by NI industry still need to go through the red channels and be subject to the full panoply of EU border checks, as will everything that doesn't have a known endpoint in Northern Ireland.

I don't think there can be any doubt that the UK government and the DUP are overselling the deal and presenting it as something it isn't in the hope that voters who are OK with the WF believe it's another small improvement (which it is) while a few of those opposed to it will peel off and accept it's the best they're likely to get.

Some in the DUP are nostalgically revisiting the Irish trilemma looking for a loophole. If you recall the trilemma refers to this: you can have only two of the following three things, but never all three.

  • Brexit
  • No sea border between GB and NI
  • No land border on the Island of Ireland

This was resolved in 2019 by Boris Johnson "accepting a GB/NI border but lying about it" as David Gauke points out in The New Statesman, which is why we are where we are.  Gauke's piece is excellent BTW and he says Brexit is "not as secure as it appears." 

The DUP and a lot of unionists would prefer there to be a land border, but they are in a very small minority. No British government will ever agree to it. Internationally Britain would become a pariah if it ever suggested such a thing.

In truth, the DUP’s choice is between Brexit (something the voters in NI were opposed to in 2016) and a border in the Irish Sea, however minimalist it is.

In addition to all the negotiations and the deal itself, there is also the not-insignificant matter of the UK government tipping another £3.3 bn for Stormont to spend.

According to Tony Connelly at the Irish broadcaster RTE European Commission Vice-President Maros Sefcovic will “carefully analyse” the UK legislative texts and the command paper which I assume means they haven't read it in detail yet although I assume they were consulted.

Sefcovic spoke to David Cameron by phone yesterday after which they issued a statement where both men reaffirmed their “shared commitment to the full implementation of the Windsor Framework.”.

Is it going to do the trick?  The jury is out

I don’t think anyone’s mind will be changed by it and it's all in the balance. Personally, I don't expect it to last.


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