Northern Ireland: “Windsor Framework” Will Not Solve Fundamental Problems

On February 27th the European Union (EU) and the United Kingdom (UK) Government published a draft agreement designed to solve the impasse which led to the collapse of devolved government in Northern Ireland in February 2022. The Framework has now been passed by an overwhelming majority the UK Parliament and has been endorsed by all EU member states. 

The Framework has the support of the nationalist parties (Sinn Fein and Social Democratic and Labour Party) which win the majority of votes in the Catholic community in Northern Ireland. The British Labour Party declared it would support the Framework before it was even published. The Irish government is fully behind the deal. US President Biden and ex-President Clinton are to visit Northern Ireland next week to mark the 25th anniversary of the Good Friday/Belfast Agreement in April and their visit is clearly designed to bolster support for the Framework and ensure a return of the local devolved Assembly.

The spotlight is now on the Democratic Unionist Party (DUP), the main unionist party, which is in favour of Northern Ireland remaining in UK and wins votes in the Protestant community. The DUP voted against the Framework in Parliament. Party leader Jeffrey Donaldson has outlined five “areas of concerns” that it wants to see addressed, suggesting that further talks and concessions from the EU could resolve the issues. Other key figures in the party have taken a harder position and reject the Framework entirely, arguing that it is even worse than the original Protocol. There is no immediate prospect of the local Assembly returning. Understanding the context of this latest crisis in the long-running “peace process” is essential if the worker’s movement is to point a way forward.    

Protestant Opposition to the Protocol

The opposition of most Protestants to the Protocol and the Framework is deep-seated. When the UK left the EU, a special protocol -the Northern Ireland Protocol- was agreed. Under the Protocol, Northern Ireland remained in the EU single market even after the rest of the UK left. This meant that new EU standards and rules apply in Northern Ireland but not in England, Scotland and Wales (collectively known as Great Britain or GB). Checks began on goods moving across the Irish Sea between Northern Ireland and Great Britain. It became more difficult to import medicines into Northern Ireland from GB, to take a pet on holiday and to import or export foods. 

Unionist political parties, which most Northern Ireland Protestants support, were outraged by the creation of “a new border within the UK”. They also pointed to a “democratic deficit” whereby new rules and regulations from the EU would be imposed in Northern Ireland without any input from the local Assembly or the central UK government, and the European Court of Justice would remain as the final arbiter of any disputes over rules and regulations. 

These developments have created a sense of threat to their identity for most Protestants, including the large majority of the Protestant working class. It was inevitable that opposition would grow, even though the DUP leadership initially reluctantly accepted the Protocol on the basis that there was no alternative. Opinion polls quickly made it clear that the majority of Protestants were opposed, and a series of demonstrations were organised, some of which had a prominent paramilitary presence, and some of which ended in rioting. In the Assembly elections of 2019, every single unionist MLA (Member of the Legislative Assembly) elected was opposed to the Protocol. The opposition to the Protocol was either ignored or derided by the nationalist parties, the government of Ireland, and the EU. It was argued that no changes were possible in a binding international agreement. By February 2022 the DUP had had enough and it pulled out of the power-sharing arrangements and collapsed the Assembly. 

Loyalist paramilitary groups have threatened violence over “Irish Sea Border”

Green and Red Lanes and the “Stormont Brake”  

Prolonged talks between the EU and the UK government followed and by now the EU realised that it had to make concessions. The Framework has moved a long way from the original detail of the Protocol. It introduces “green” and “red” lanes to reduce checks on goods that are crossing the Irish Sea from Great Britain to Northern Ireland. Goods which are staying in Northern Ireland will go through the faster green lane, though there will still be paperwork to complete and 5% of shipments will be physically checked by officials. Goods which are moving through Northern Ireland into the Republic of Ireland, and thus into the EU, will go through the red lane. This will involve much more paperwork and 100% of goods will be checked. There are several related agreements to make it easier to import medicines, and to smooth out differences in VAT (a consumption tax) and alcohol duties (or taxes).

The EU and the UK government recognised that smoother trade arrangements alone would not be enough to break the impasse and that the new arrangements had to at least appear to give the unionist parties more of a say on future new regulations. The Framework introduces a mechanism called the “Stormont brake” (Stormont is the  seat of the Northern Ireland Assembly). The brake will allow the Assembly to temporarily stop any changes to EU regulations from applying in Northern Ireland if the Assembly fears that the changes would have “significant and lasting effects on everyday lives”. The Assembly can trigger the brake on any new “significantly different” regulation if 30 Members of the Assembly from two or more parties’ object. A 14-day consultation period will then begin before the issue is passed to the UK Government for consideration. 

This is a variation of an existing procedure known as the “petition of concern”. It is a safeguard agreed as part of the Good Friday Agreement in 1998 which is designed to protect the rights of minorities.The key difference is that the brake is less dependent on cross-community support.  There are 35 MLAs from unionist parties in the current assembly and two independent MLAs who designate as unionist. This bloc can ensure issues go to the UK government for consideration as cross-community consent (support from both unionists and nationalists) is not required for this step. 

If the brake is applied, and the UK agrees to take the issue to the EU, the regulations in question would automatically be suspended within a maximum period of four weeks, ahead of further independent arbitration via the Joint Committee, which oversees the operation of the Protocol. The UK government states that this provides Stormont with a “genuine and powerful role” in the decisions about the application of EU laws in Northern Ireland. Crucially, this mechanism will only operate once there is a fully functioning local government in NI.

Whilst a Stormont vote would not be required to trigger the brake, but it has been suggested as a possible way of releasing the brake. The UK government says a decision on whether to permanently block an EU rule would not happen “in the absence of a cross-community vote”. The process has yet to be worked out fully and will require consultation with the Stormont parties. 

There are also additional caveats. The UK government says it could still allow new regulations in “exceptional circumstances” even if a vote at Stormont made clear its opposition. The brake will only apply to new EU regulations, not existing regulations. And the brake does nothing about the jurisdiction of the ECJ in interpreting the law of the EU when it applies in Northern Ireland.

Striking Health Workers rally at Belfast City Hall, March 31st 2023

Will the brake work?

The conditions and process for the brake mean that it will be almost impossible to apply. Vague expressions of concern will not be enough. The EU has made it clear that it views the brake as a mechanism which should only be used in the “most exceptional circumstances and as a matter of last resort”. The UK government states the mechanism cannot be used for “trivial” reasons and that there will need to be a clear demonstration that an EU regulation “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”. The burden of proof for this will lie with MLAs, to be provided in a “detailed and publicly available written explanation”. The MLAs will need to show that they have consulted businesses and civic society and have participated in any prior consultation exercises for the new regulation. 

It does not take a crystal ball to foresee a series of crises as the Framework is implemented. The Northern Ireland Assembly has only functioned for just over 50% of the time since 1998 because of repeated breakdowns on multiple issues. Each new rule and regulation introduced by the EU will be scrutinised by the unionist parties. Every slight deviation from the UK rules will potentially be seen as an attack on their national identity. Each time they seek to apply the brake, nationalists will come out in opposition. The Assembly will be paralysed in a continuous cycle of EU-gazing. 

The UK Government will be reluctant to take issues to the EU and will be tempted on many occasions to deny that the issue is significantly serious. This will cause further tension and anger in the Protestant community if they believe that their genuine concerns are being ignored. If the UK Government does pick up on an issue and takes it to EU, there is no explanation as to how the issue will be resolved. Theoretically, if everyone agrees that the issue is of serious concern and should not be applied in Northern Ireland it will be dropped. Then the EU will have to decide whether it drops the new rule/regulation for all of the EU, or it introduces it, and NI is then out of step with the single market. In other words, the single market will begin to fracture as a consequence of the decisions of 30 members of a local assembly in a small corner of Europe. That this what will happen in practice seems very unlikely.

If the EU rejects the representations of the UK government Protestant anger could boil over, especially if it is seen that the Republic of Ireland government has a prominent say on the issue. In other words, the brake will be difficult to press, and if it is pressed it won’t work. It will result in a spiralling series of crises. 

What will the DUP do?

DUP leader Jeffrey Donaldson. has claimed a partial victory for the DUP pointing out that the EU has made many concessions that were previously totally ruled out in public and private. Others within the DUP, especially MPs, Sammy Wilson and Ian Paisley, have explicitly stated that the Framework does not go far enough and that the brake will not work. The DUP established a panel, which includes two ex-DUP leaders, to examine its clauses in detail. It reported on March 31st. The next few weeks and months are likely to see an intense internal debate within the DUP as it struggles to decide on its strategy. The polls suggest that only a minority of Protestants are prepared to accept the Framework, but a majority do not believe that it goes far enough. The Traditional Unionist Voice (TUV), which stands to the right of the DUP, continues to maintain a hard-line position and the DUP will be concerned about losing votes to the TUV in the local elections in May. 

This is a difficult call for the DUP as if it does not agree to go back into the Assembly, the Framework is almost certain to be implemented anyway, and they will remain outside the corridors of power. The DUP are a pro-devolution party and want to get back into the devolved government. They are unhappy about joining an Executive in which Sinn Fein hold the First Minister position but have stated repeatedly that they will do so when the time is right. Many Catholics do not believe this assertion and believe that the DUP are staying out of government because they do not want to serve under a Sinn Fein First Minister. Suspicion and lack of trust of Catholics for the DUP is mirrored by suspicion and lack of trust for most Protestants regarding Sinn Fein. 

Unity on the Picket Line, Division at the Ballot Box

The crisis over the Protocol has increased sectarian tensions. Simultaneously, working-class people have suffered a severe fall in living standards as rising inflation cuts real wages. The largest wave of strikes in over 30 years has seen workers in both the private and the public sector engage in action for decent pay and improve conditions. Thousands are mobilising against cuts at the South-West Acute Hospital outside Enniskillen in an inspiring mass cross-community campaign. Every strike or cross-community campaign is an expression of the unity of working-class people. It remains a fact that no strike has been broken by sectarianism over the last 50 years.

In such a scenario there is a responsibility on the leadership of the workers movement to consciously build on the unity of workers in struggle, reinforcing the need for unity at every opportunity, and pushing back against divisive sectarian ideas. Unfortunately, most of the workers who are engaged in joint struggle on the picket line have no alternative to political parties which are based on sectarian division at the ballot box.  There will only be a handful of candidates in the local elections in May who stand on a platform of working-class unity and solidarity and who argue for a socialist alternative. 

The trade unions are the only significant organisations which unite working people and it is essential that the movement formulates a stance on the Framework which is independent of the sectarian political parties and the British and Irish Governments. It should be based on the need to maintain peace and stability and to build a better life for all working people. The EU can move further and in effect creates a Northern Ireland which avoids the imposition of a hard border either in the Irish Sea or between Northern Ireland and the Republic of Ireland. A Northern Ireland with open borders, and which recognises the national identity and aspirations of both communities, would stabilise the political situation and create an opening for the workers movement steps. A resurgent trade union movement and a new a mass party with strong trade union links would be a real challenge to the sectarian parties and the capitalism. Then we can begin the task of sweeping aside division, poverty and insecurity and building a socialist future.

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