The Realpolitik of the Windsor Framework

It may surprise few here to learn that these days, Jim Allister is not a very happy man. Yes, this year he has achieved his long-held ambition of becoming an MP (and uprooting the Paisley dynasty from their North Antrim redoubt at the same time). Yes, recent polling has positioned him as the most popular of the three current Unionist leaders, and yes that same polling has put his Traditional Unionist Voice party into second place amongst Unionist voters but in spite of all that Allister is clearly still a vexed individual.

And the source of Allister’s vexation is the continuing existence of the Windsor Framework (née the Protocol), the rules underpinning the trading arrangements between Great Britain and Northern Ireland which preserve the open border on the island of Ireland in the aftermath of Brexit. In fairness, many Unionists are vexed by the Windsor Framework (and are happy to tell pollsters as much), but Allister’s continued focus on it (and of course continually reminding people of the role the DUP played in bringing it about) may explain why the polls have shown why he is so well regarded by so many Unionists.

The Framework is now back on the political agenda, albeit almost certainly transitorily, for two reasons. Firstly, the upcoming vote on the continuation of the arrangements that Stormont is obliged to hold as part of the consent mechanism Rishi Sunak obtained when he negotiated the Windsor Framework and secondly Jim Allister’s Private Member’s Bill at Westminster on the issue. Backbench MPs can win the right to submit a private member’s bill via a lottery system and it is to Jim Allister’s stupendous good luck that he won the opportunity to do so at the same time the consent vote at Stormont is due. Surely one of those coincidences that add colour to any good story.

Prompted by the imminence of the vote at Stormont Allister penned an article for ‘The Critic’ website (which can be found here. The Critic is a platform for Eurosceptic and conservative viewpoints which Jim Allister apparently shares) where he laid out his criticisms of the Windsor Framework at length, but which can seemingly be boiled down to two core objections.

The first objection from Jim’s perspective is that the protocol is undemocratic. As Allister sees it

“The Government is requiring that, before the end of the year, Stormont votes on a proposition that is more controversial than any to have ever come before it in its 103 year history. A yes vote effectively involves MLAs:

Affirming the removal of Northern Ireland from the UK single market for goods and its insertion in an all-Ireland single market for goods – a necessary precursor to the creation of an all-Ireland state;

Affirming that in 300 areas the laws of Northern Ireland should be made by the Republic of Ireland and 26 other states, but not Northern Ireland (or the UK as a whole); and,

Renouncing the rights of the people of Northern Ireland to be represented in the legislature making the laws to which they are subject in 300 areas for a period of between 6 to 8 years.”

The bald facts of this statement are inarguable I reckon. We are, through this vote, signalling our willingness to have European Law imported and to apply to us even though we have no elected representatives sitting in the European Parliament and thus have no input into those laws. But this does seem to ignore the Stormont Brake whose existence was trumpeted by Sunak as THE breakthrough achievement of his renegotiation with the European Union as a failsafe against the application of European law that politicians in Northern Ireland are concerned about (if used properly of course) and of course, it ignores that the consent vote is itself a democratic exercise.

Each of the major parties communicated well in advance in recent elections how they would vote on the Consent mechanism, and voters in the north were able to calibrate their votes on that basis.

Allister’s second objection is one of basic fairness regarding the consent mechanism, or rather unfairness. As he puts it…

“What makes today’s events particularly alarming for unionists, however, is that this is to be a majority vote, as if the last fifty-two years never happened.

Unionists were not at all happy when we were told that, notwithstanding the fact that we were in the clear majority at Stormont, we had to forgo the conventional democratic benefits of majority decision-making supposedly out of regard for those who were not in the majority.

Yet now, precisely as soon as Unionists find themselves no longer with the majority of seats at Stormont, and a proposition comes up that constitutes the greatest existential threat to unionism, not just in the last 52 years but in the last 103 years, we are told that the purportedly neutral protections for minorities are to be arbitrarily dispensed with.

It is utterly shocking that the EU should be so ignorant of Northern Ireland that it should have made such a proposal and nothing less than appalling that our own Government should have agreed to it.

If the vote proceeds it will necessarily place the future of Stormont in jeopardy in that, if it is fine to make decisions pertaining to the most controversial proposition to come to Stormont in 103 years on a majoritarian basis, there can be no possible justification for not allowing majority decision making on all the other less controversial matters.”

Again, on the surface, Allister seems to have a point. The cross-community consent mechanisms of the institutions, which some have referred to as the ‘ugly scaffolding’, were insisted upon by Nationalists in 1998 given their historic memories of unfettered Unionist rule during the first fifty years of the state. The cross-community consent mechanism was instituted as a safeguard against that unfettered majoritarian rule ever returning. In the decades since the GFA it has certainly chafed the Alliance party and other middle-ground parties who feel restrained by it, and it can be said it has been abused by both sides in circumstances it was never intended to be used in (for example, thwarting censure motions aimed at individual MLAs who have broken the rules, as Sammy Wilson was in 2015) but the ugly scaffolding persists. Unionist objections to the need for cross-community consent (and lest we forget Jim Allister was one of the foremost objectors) have quietened in recent years as their former majority has melted away and they have come to rely on it to stymie changes they are opposed to. Other Unionists, such as Baroness Kate Hoey and Loyalist commentator Jamie Bryson have backed Jim Allister’s objection on this point.

So, is it an open and shut case that the consent motion on this issue alone operating on a blatantly majoritarian basis is unfair to Unionists?

I would argue that it depends. Allister is framing the issue as one of basic fairness, that Unionists were restrained from exercising their majority position when they had it but are prevented from exercising the institutional veto that should be afforded them under the rules now that they are a minority by a stitch up between the British government and the EU.

The problem with his argument is that while the European Union was ultimately convinced that Northern Ireland legislators needed some form of democratic input into the application of EU laws following our withdrawal from the European Union and the application of the Framework, everyone could see that Unionists would simply use a minority veto axiomatically at the first opportunity. The result of this would be that the trading relationship between the European Union and the United Kingdom would again be thrown into turmoil over the issue of what to do with Northern Ireland whilst the Unionists who had deployed the veto would undoubtedly sit back and leave others to clean up the mess.

Many Unionists of course seem to see the issue in black and white terms, that the only acceptable place for the customs border is the international border, and thus the only acceptable solution is to place the border along the international land border within the island of Ireland. Once you accept this as a starting point, then the chaos that would result from a Unionist veto on British-European trade relations is because the European Union is ‘disrespecting’ the territorial integrity of the United Kingdom and not because Unionism is seemingly wilfully blind to the need for special measures for Northern Ireland. Allister’s complaint can be considered selectively hypocritical in that it emphasises the divided nature of northern society to argue that the majoritarian nature of the mechanism is unfair, yet the practical result of conducting the veto on a cross-community basis would be to afford Unionism the ability to veto anything that was not what they wanted (an enforced conformity with Great Britain) everyone else be damned.

A truculent, hostile, and most importantly a minority group of legislators within Stormont were never going to be afforded the ability to upend an international trading relationship on a whim. That the consent motion was agreed to be given to Stormont at all, when trade and international relations (under which the Windsor Framework falls) are an explicitly reserved matter, should be seen as recognising that some level of democratic input from Stormont was vital. This is of course is the critical point, elided by Allister and those who agree with him, who seek to argue the mutual veto under the existing system and which was designed for responsibilities which are normally devolved should also apply to a matter which would never ordinarily have been desolved but which was done so because of the extremely special circumstances we found ourselves in.

As Professor Paul Bew is quoted in the Belfast Newsletter as saying

“…that the vote in Stormont is a “special concession”, as trade matters are ordinarily the responsibility of the UK Government.

The independent crossbench peer said: “The truth of the matter is, the Assembly will vote on this matter – I know that there are those that dislike that.

“The major change between the Johnson agreement and the May agreement was putting in that there should be a vote in the Assembly on any new arrangements.

“It does mean that this talk about people being disenfranchised – it’s not going to be disenfranchised, its going to get a chance to vote.

“I understand the objection to the form of the vote, it’s a majority vote, although it is the case that that is so because actually trade matters are the responsibility of the UK Parliament – it is special concession to give a vote to the Assembly on this occasion.”

That this unique responsibility, distinct from every other type of issue Stormont considers, is subject to a majoritarian vote rather than being cross-community is simply harsh realpolitik. Unionists may grouse about the sheer unfairness of it (though I would debate that, the fact we have a vote at all is something of a miracle given what it is a vote ON), but since the alternative is their immediate veto and then economic we can hardly be surprised that the consent mechanism was implemented on a majoritarian basis. They seem amazed that having spent many often acrimonius years building an arrangement that could command the support of the British government, the European Union and the majority of people in Northern Ireland, that they were not handed the instrument to bring it all crashing down on a whim though they really shouldn’t be.

Allister has not given up hope of course and is pursuing his options in Westminster. As I mentioned earlier he has submitted a private member’s bill related to the operations of the Framework. Whilst I cannot find the text of the bill as yet, it is described on its page at the UK Parliamentary website as

“A Bill to make provision to modify the effect on domestic law of arrangements relating to the withdrawal of the United Kingdom from the EU; and for connected purposes.”

This ‘Belfast Newsletter’ report by David Thompson states that

“It contains three clauses which will: require respect for the territorial integrity of the UK; temper the effect of EU law in NI – and address how goods should move from NI to ROI as was anticipated under the NI Protocol Bill in 2022, which had Commons support.”

This strongly implies the bill will once again push mutual enforcement as the solution to the border in Ireland. The TUV put out a press release over the summer again lauding the idea (found on their website here) where it quotes former UUP MLA Dr.Esmond Birnie who describes Mutual Enforcement as having some very considerable advantages, stating…

‘It would remove NI from a general liability to EU laws. Even with the further reforms of the position promised in the recent Safeguarding the Union Agreement we can see there are many anomalies – NI based potato crisp manufacturers will be unable to use certain additives, NI dentists will be unable to use certain types of fillings etc.”

“Mutual Enforcement avoids having to have a border infrastructure at either the Irish Sea border or the NI-RoI land border.”

Mutual Enforcement of course was rejected by the EU for multiple reasons, first and foremost among them was the absolute lack of trust the EU had in the previous Conservative government (though there were likely other technical issues that rendered the idea unpalatable to Brussels). Labour may be seen as being more trustworthy than the Tories by Brussels, but they have still been reluctant to move closer to the European Union on many issues since taking power (doubtless because they are still terrified of antagonising pro-Brexit media and voters) and of course, the Conservatives are going to inevitably come back to power at some point, perhaps with the explicit goal of leaving the European Court of Human Rights (whose operation is codified within the GFA) and maybe with the intent of having another crack at the trading arrangements in place to keep the Irish border open.

The Windsor Framework, a rules-based structure subject to verifiable data and codified expectations, is far more in line with the European Union’s preferences under those circumstances and nobody should be in the least surprised otherwise.

‘The Newsletter’ further reports that all Unionists sitting at Westminster have sponsored Allister’s bill as well as some of the remaining Conservative MPs (former Conservative leader Iain Duncan Smith being of note). ‘The Newsletter’ has taken a hostile approach to the Windsor Framework, highlighting what it perceives as the negative aspects of the arrangements at every opportunity. The article itself mentions that there are doubts regarding what was one of the great selling points of the Windsor Framework, the potential that dual access to both the EU and the UK markets would provide us…

“It comes amid fresh doubts over the promised benefits of trading arrangements under the Windsor Framework. Invest NI officials have admitted to a Stormont committee that there hasn’t been any foreign direct investment relating to Northern Ireland’s supposed ‘dual market access’ – despite the arrangements being lauded by global leaders when the deal was signed.”

Though you have to wonder how much damage was done to the prospect of dual market access by the two lengthy collapses of the institutions (both rooted in Brexit) we have seen since 2016, one of those collapses being initiated by the DUP who wished to destroy the arrangements underpinning that dual market access. Perhaps it made investors think twice?

Allister’s bill however is doomed to failure, which he is doubtless well aware of. The Labour government is going to operate the Windsor Framework in good faith and the long days of Brexit, when Unionists would reject every compromise to see if they could gain a smidgen more ground through obstinacy, are at last over. The Conservatives were minded to listen to them, almost seeming as if they merely needed an excuse to accommodate them but Labour has given no sense it is as obliging (in fact it seems that Labour feels it is under no obligations to enact all aspects of the ‘Safeguarding the Union’ deal the DUP negotiated with the Tories earlier this year).

It is hard not to reach the conclusion that many Unionists will never reconcile themselves to the Windsor Framework because of the fundamental nature of what it does, it distinguishes Northern Ireland as a place apart from the rest of the United Kingdom by separating out our economy. Such Unionists will never see any positive with the Framework without looking for a negative spin, and many Unionists will seek any way they can to overturn it, whether that be the advent of a new and extremely Eurosceptic Conservative government at a future election or perhaps the hope that recently re-elected Donald Trump (whose dislike of the European Union runs deep) will somehow cause the whole thing to be re-evaluated. (Irish Nationalists quick to guffaw at such an approach though may ponder how their own attitudes to the United Kingdom and hopes for reunification can mirror this). Whilst the sentiments are understandable, reality is unforgiving.

The realpolitik of the Framework is this. Its benefit for Northern Ireland is to preserve the open border on the island which was Nationalism’s most visible win from the Good Friday Agreement, an immense boon for the Republic and an overall positive good for the island as a whole. When Nationalists were challenged by some to choose between power-sharing and the open border, Nationalists chose the open border. This was borne out from conversations on Slugger O’Toole by individuals at one level to the political level where neither Nationalist party compromised on the necessity for something like the protocol if it was required to bring Stormont back.

The open border is more important for Nationalism than power-sharing. If forced to choose, nationalists will choose the open border. Unionism, which arguably needs power-sharing more than Nationalism does to back up their argument that Northern Ireland can work, was foolish to attempt to force the choice. Similarly, the Republic will do everything it can to avoid the imposition of a hard border on the island of Ireland, and they will call upon the strength of the European Union to support them in such an endeavour (and have already done so).

As for the proposed economic benefits from dual access they would be a nice to have but if they are not forthcoming then that is unfortunate, but it can be borne and it is not the point.

The Framework exists because we ARE a place apart from the rest of the United Kingdom with unique needs and always have been (the Framework may accentuate the distinction, but it is in no way a causal factor). A bespoke solution to the need for an open land border on the island of Ireland was always going to be required to answer the challenges thrown up by Brexit, and the majority of the population of the north agreed on that as expressed at multiple elections where pro-framework parties consistently won majorities and in polling where majorities accept Northern Ireland needs these arrangements.

Allister and wider Unionism remain vexed by the Windsor Framework, a framework that leaves them in a position that is constitutionally imperfect, in that they now share something with their nationalist neighbors, who also live under what is to them a constitutionally imperfect system but who are expected to deal with the reality of it.

Perhaps there is something to be said for this new symmetry of mutually imperfect worlds?

I’m a firm believer in Irish unity and I live in the border regions of Tyrone.