115: Stormont returns

The Northern Ireland Assembly resumed sitting at Stormont this week after the Democratic Unionist Party (the DUP) accepted assurances from the Westminster government around the Windsor Framework and brought its boycott of the Northern Ireland Executive to an end.

This blog post reviews the cause of the boycott and considers what has changed to allow the devolved government in Northern Ireland to resume.

‘Two out of three ain’t bad’

By way of reminder, the Assembly is the devolved legislative body for Northern Ireland (NI), and the Executive is its devolved government. Both were established following the Good Friday Agreement and, later, the St Andrews’ Agreement. Under the unique arrangements for devolved government in Northern Ireland, designed to ensure fair representation for those identifying as unionist, nationalist, and neither, the elected Assembly appoints an Executive, allocating ministerial positions within the Executive using the d’Honte system: the largest party by seats takes the post of First Minister, the second largest the post of Deputy First Minister.

After the last Assembly election in May 2022, the nationalist party Sinn Fein had the most seats and were set to take the post of First Minister for the first time. However, the DUP (unionists), the most recent holders of the post, refused to consent to the election of a speaker, which meant the Assembly couldn’t continue other business, including the appointment of the executive.

The DUP did so in protest against the NI Protocol, part of the EU Withdrawal Agreement (EUWA). The Protocol provides that post-Brexit, NI is to remain in the EU Customs Union, unlike the rest of the UK. It did so to find a solution to three (arguably logically inconsistent) elements that the UK government has been grappling with since the Brexit referendum:

• Brexit means (or was interpreted to mean) the UK leaving the EU, including the Single Market and Customs Union, so the UK could ‘take back control’ rather than aligning its laws and regulations with the EU;
• under the Good Friday Agreement, the UK was committed to a frictionless border with Ireland; and
• northern Ireland is an integral and full part of the UK and should not be treated differently.

The Protocol tried to resolve this conundrum by creating a form of customs border in the Irish Sea: goods travelling from GB to NI are now subject to EU customs checks and tariffs. Certain EU laws, as set out in the Protocol, continue to apply in NI, when they don’t apply in Great Britain (England, Scotland, and Wales). This is the ‘two out of three ain’t bad‘ solution (yes, that was now six years ago!): it achieves the first and second elements at the expense of the third.

Despite the DUP’s opposition to the Protocol, it was passed by the Westminster Parliament, who wanted to ‘Get Brexit Done’.

Windsor Framework: Modifying the Protocol

But the DUP’s opposition to the Protocol (and ongoing boycott of Stormont) led to further negotiations between the EU and UK, and, in February 2023, a new agreement was reached to change the way the Protocol operates: the Windsor Framework.

This ‘watered down’ some elements on the Protocol; principally, it provided for a ‘green lane’ for goods travelling from Great Britain destined to stay in Northern Ireland (fewer checks and controls) and a ‘red land’ for goods travelling on to Ireland / the EU (full checks and controls), plus simpler checks across the board on agri-foods.

It also provides a ‘Stormont brake,’ whereby the Assembly can object to the application of some (but not all) updated or amended EU laws – mainly concerning goods – that would have applied automatically in Northern Ireland under the existing Protocol. This will be the case where they are ‘significantly different’ from existing rules and have a ‘significant impact specific to everyday life of communities’ in a way that is ‘liable to persist’. If the Assembly uses the Stormont Brake, the UK government has the ability to prevent the updated or amended EU law from being applied in Northern Ireland. If the EU believes it should apply and the EU and UK cannot reach an agreement, the EU can take ‘appropriate remedial measures’. There is a separate process for adding new (rather than updated or amended) EU laws to the Protocol which allows the UK Government to block their application in Northern Ireland.

Despite these changes made by the Windsor Framework, the DUP continued to refuse to join the Executive and blocked the functioning of the Northern Ireland Assembly, asking for more changes to be made to how the Protocol operates.

Safeguarding the Union: Not modifying the Protocol

In January 2024, the government announced new measures (Safeguarding the Union) to reassure the DUP and restore devolved government:

• A new legal duty for UK ministers when introducing primary legislation at Westminster is to consider whether it would affect trade between Northern Ireland and other parts of the UK because it would diverge from EU rules as applicable in Northern Ireland;
• new legislation (Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024) preventing UK governments from entering new agreements with the EU that supersede all or parts of the current Protocol and that would create new regulatory barriers between Great Britain and Northern Ireland (but which does not affect new EU laws being applied to Northern Ireland under the existing Protocol);
• changes to the UK Internal Market Act (IMA) – discussed here – reinforcing the UK government’s policy of unfettered access of qualifying Northern Ireland goods to the Great Britain market (i.e. NI to GB trade);
• proposed changes (yet to be detailed) to turn the Windsor Framework’s ‘green lane’ into an ‘internal market system’ to further reduce ‘burdens and formalities’;
• a consultation on proposed legislation to extend the ‘not for EU’ labelling systems for certain goods sold in Northern Ireland to the rest of the UK;
• amending the EU (Withdrawal) Act 2018 to refer to the Democratic Consent and Stormont Brake procedures set out in the Northern Ireland Protocol / Windsor Framework and enshrining in law the UK government’s commitment to conduct an independent review if democratic consent for continuation of NI alignment with EU rules on goods is obtained by a majority of Assembly members voting but not with cross-community support; and
• establishing a new East-West Council, a forum for representatives from government, business, and the education sector from Northern Ireland and Great Britain, to ‘identify opportunities for deepening connections between Northern Ireland and the rest of the UK in areas such as trade, transport, education, and culture’.

The DUP accepted these measures, allowing the devolved Assembly and Executive to be restored.

I’d make three points with respect to these measures.

First, the changes are almost exclusively unilateral and domestic measures taken by the UK government as a national government. The measures do not require, and have not been formally negotiated with the EU, and are not modifications to the Protocol or the Windsor Framework. Only the proposed changes to the ‘green lane’ would seem to involve such a change, and that is only proposed because no deal with the EU on those changes has been done.

Second, the measures indicate that the current UK government, under Rishi Sunak, is willing to accede to (indeed, may even favour) ‘dynamic regulatory alignment’ with the EU in certain areas, such as trade in goods. This direction of travel was already apparent from the compromises made in the Windsor Framework and, perhaps most notably, in the significant ‘watering-down’ of the Brexit Freedoms Bill proposals when eventually enacted as the Retained EU Law (Revocation and Reform) Act 2023. Returning to the ‘two out of three ain’t bad’ test above, the current UK government seems willing to compromise on the first element, ‘taking back control’, in order to achieve the second and third.

Third, the DUP’s support for Brexit – some of the most trenchant and vocal in the Commons – can be interpreted as motivated by a desire to ‘roll back’ some of the ground lost over the permanence and impermeability of the Northern Ireland / Ireland border through the Good Friday Agreement. However, the measures now introduced do not modify that agreement and don’t change the Protocol / Windsor Framework, which are predicated on a continued ‘open’ border. So, arguably, the DUP has accepted the measures despite their core aim and motivation not being directly addressed. The upcoming general election and the >£3 billion financial package outlined by the Secretary of State for Northern Ireland may have been factors in the DUP endorsing the deal to restore the Assembly and Executive.

Whether it is enough to maintain their support for the Assembly and Executive long-term, past the 2024 general election, remains to be seen.