Right of Reply

Around a month ago I wrote a piece highlighting what I argued to be the ‘Realpolitik of the Windsor Framework’. The vast majority of Unionist politicians are unhappy at the Framework and have been expressing their displeasure over these arrangements since they were implemented but that displeasure has become increasingly noisy since Jim Allister (through sheer luck) was afforded the ability to promote a private member’s bill on the issue at the same time Stormont was required to conduct the legally mandated consent vote on aspects of the Framework to ensure they have democratic legitimacy (the later of course is being conducted on a majoritarian rather than a cross-community basis, leading to much Unionist anger).

To summarise the previous article, the realpolitik could be defined in three points.

Firstly, that Unionism’s desire for a one-size-fits-all approach to Brexit for the entirety of the United Kingdom was unrealistic when that Brexit was predicated on diversion from the EU. Our unique circumstances were always going to have to be taken into account in any final outcome.

Secondly, that a minority community in a devolved region would not be handed the tools to demolish an international agreement that took many often-acrimonious years to hammer out was self-evident.

And thirdly, that whilst Unionism is quite vocal about the painful consequences of Brexit, nobody ever said Brexit was going to be a pain free exercise. Quite the opposite in fact, the agony was going to fall somewhere. The Windsor Framework directed that pain into an Irish Sea border which admittedly IS having an impact on traders here, one which Unionist commentators are very quick and very keen to highlight. Owen Polley, in an article for ‘the Belfast Newsletter’, talks about the incoming imposition of new rules governing trade between Great Britain and Northern Ireland from December 13th.

“On Friday, Brussels’ onerous new product safety regulations come into force. Thanks to the Windsor Framework, these laws apply in Northern Ireland. In fact, every time the EU adds more red tape, which it does with depressing regularity, it will become harder to trade with the rest of the UK.

These particular General Product Safety Regulations (GPSR) require companies in Great Britain to fill in more paperwork, when they sell products to customers here. In addition, traders will need to nominate a ‘responsible person’ based either in Northern Ireland or the EU, if they want to continue to do business in the province.

The new rules could quickly decimate online sales from GB to NI. This type of business is often carried out by small companies, many of them trading in inexpensive items. They simply cannot justify the extra time and cost involved in sending goods here, still less the palaver of appointing a ‘responsible person’ as a kind of on-the-ground agent. Many have already stated that they will pull out of our market.

The effect could be particularly noticeable on platforms like Amazon and eBay, where third party sellers often sell useful items for relatively low prices. This kind of trade is no longer the preserve of a few hobbyists and can involve firms employing quite a few people.

For customers, this all means a lot of increased frustration, as we find that things we used to buy are no longer available. Ultimately, of course, it also means less choice and higher costs. If you were planning to order some last minute Christmas presents online, that task may have got that bit more complicated.”

This economic impact is real, it is happening, you merely have to read testimonials from folks like Michael and Leslie Cairnduff who tell us that ‘small businesses are being crucified’, but what Unionist commentators neglect to mention is that it is also the best option out of the extremely narrow menu we were provided with at the culmination of the Brexit process. The alternative was a hard border on the island of Ireland that would have been considerably more expensive to operate and more disruptive to the lives of people on this island by several orders of magnitude than goods being checked in a warehouse in Larne. Admittedly, they neglect to mention this as they are at pains to emphasise the alternatives they believe are superior, but the most prominent of these, mutual enforcement, was described as magical thinking on more than one occasion.

Now, a hypothetical alternative that is certain to be worse is always going to be a harder sale than the lived reality of difficulties under the present arrangements, yet must be borne in mind when we encounter the individual stories of those who struggle because of them (such as the Cairnduffs).

But I would emphasise that the cause of those difficulties is not the Windsor Framework.

The cause of those difficulties is Brexit.

The Windsor Framework is the consequence of Brexit, and to attribute the problems some face to the Framework is disingenuous, it supports that ‘magical thinking’ that there is an easy answer that involves no difficult choices and which negotiators somehow missed across many years of talks as attributing the problems to the Framework suggests removing the Framework as the answer. That would merely transfer the pain of Brexit from one part of our society to another and magnify it by several orders of magnitude.

Because Unionists were the most aggrieved by how Brexit ultimately worked out, they have been the most vocal. And they have sought platforms for their anger, of which in the past seven days three emerged. And yet when seeking a platform for debate from which to vent that anger about the Windsor Framework they ended up affording their opponents who have reconciled themselves to the new reality and wish to operate it the right of reply.

The first platform where the protocol came up was Friday’s debate in the House of Commons when Jim Allister’s private members bill came to the floor.

Allister railed against the iniquities of the Framework, just as he was wont to do on the benches at Stormont, with Belfast Live reporting he told MPs

“Since I came to this House in July, I have lost count of the number of times I’ve heard from the Government benches affirmations about “fixing the foundations”. Well, there’s one foundation that most assuredly needs fixed, and that’s the foundation which flows from the inequitable post-Brexit arrangement, as they affect my part of the United Kingdom, Northern Ireland.

“Because the foundations of this United Kingdom have been disturbed and dislodged by these arrangements. So the primary purpose of this Bill is yes, to fix those foundations, to restore equilibrium to Northern Ireland’s place within the United Kingdom….”

“The most limp excuse that I hear for this plundering of the Northern Ireland statute booked by the EU is ‘oh, international law requires this’, Sorry? What sort of international law says a state must self-harm by disenfranchising its own borders? There is no such international law.”

Fleur Anderson, responding for the government, said

He has used hyperbolic and frankly incendiary language, impugning the motives of our partners and allies, all the while ignoring that it was this house that voted for the arrangements that now apply Madam Deputy Speaker,” she said.

“I can only presume that he supports the sovereignty of this parliament.”

“Indeed, he’s opposed the existence of the Northern Ireland Assembly under the Good Friday Agreement, so he should reflect that the Windsor Framework represents the democratic will of this house.”

Ms Anderson said that Mr Allister’s bill was not compatible with international law, does nothing to take account of Northern Ireland’s unique circumstances and that it serves to prejudice the democratic decision which will be taken by the Assembly on Tuesday.

Jim Allister was an exceptional debater at Stormont, able to ask incisive questions and sometimes seeming to single-handedly hold the Executive to account by himself (particularly in eras where the Executive consisted of all five major parties) but it seems that within the Westminster eco-system there are those who are well able for Mr. Allister.

I think the best response of the day went to Labour MP Deirdre Costigan who laid into Jim on his hypocrisy. While Jim has argued that the Framework renders people in Northern Ireland second class citizens within the United Kingdom by treating them differently, Deirde reminded him that he (and many of his fellow Unionists) were quite content for there to be differing laws on reproductive rights and equal marriage.

As she put it

“It has become increasingly clear in this debate that the hon. and learned Member for North Antrim has no interest in progressing the Bill. He knows that it is unworkable and has no intention of its ever becoming law. What he is doing today is purely and simply political posturing for nakedly electoral reasons.

I was interested and slightly amused to hear the hon. and learned Member for North Antrim refer to his interest in ensuring equality and equal access to citizenship for all the citizens of Northern Ireland. I wonder if he felt the same way about extending access to equality and citizenship when it came to reproductive rights for the women of Northern Ireland and the right to equal marriage for people in Northern Ireland. I do not recall him being as vociferous at that time.”

Unionist opponents of the Framework, the protocol or any bespoke arrangements for Northern Ireland to mitigate Brexit have never to my mind adequately addressed this contradiction, always choosing to ignore it when it is brought up to focus on their anger on a differentiation they don’t support, which of course is the point. The difference between the Framework and those rights Unionists spent many years thwarting from being extended to us here is a difference of desire. Differentiation is fine when they wished it, but anathema when they don’t. To confront the fact is to admit the hypocrisy it seems. Still, what they refuse to acknowledge, the rest of us can see quite plainly.

Ultimately, the bill was talked out and did not proceed to a vote, an outcome Jim Allister said he was ‘not surprised by’, but while he chalked it up as a moral victory, he made no progress on his practical goal of overturning the arrangements.

The second platform was Jamie Bryson’s emergency hearing on Monday seeking leave to block the consent vote, which was dismissed late Monday evening.

Bryson’s challenge to the consent vote had been trailed several days in advance, and rested on his assertion that Secretary of State Hilary Benn had misinterpreted the legislation by not carrying out a consultation on the process and by arguing that the vote itself breached his duty to protect the union.

However, whilst the Judge did commend Bryson on ‘cogently’ arguing his case, he ultimately made the following observation regarding Bryson’s challenge.

“The thing that strikes me as repugnant to the separation of powers is asking the court at this stage to stop a legislative assembly conducting its business by holding a vote. It strikes me as fundamentally undemocratic.”

The challenge, like so many others brought by prominent Unionists, was dismissed.

And this brings to the third platform which is the democratic consent vote itself, held yesterday at Stormont. In the lead up to the vote, Unionist complaints regarding it grew louder. Bryson attempted to stop the vote altogether through his legal action, and Jim Allister has regularly criticized the majoritarian nature of the consent mechanism.

Ben Habib, fresh from quitting Reform UK, has argued that Unionists should boycott the democratic consent vote.

Sammy Wilson declared that they DUP wouldn’t boycott but he did say that the Assembly vote on the protocol was ‘rigged’,

“We have consistently warned about the unfairness of the Democratic Consent vote since October 2019, when Nigel Dodds told the House of Commons that such a vote ‘drives a coach and horses through the Belfast Agreement by altering the cross-community consent mechanism.’ Despite unionists voting against, this vote has been rigged to get the desired outcome.

Sammy goes on to ask the critical question for Unionists…

In Northern Ireland, we have safeguards to prevent domination by one community, such as the requirement for a majority of both unionists and nationalists in key votes. Why, then, is the decision on the NI Protocol, a deeply divisive issue, not held to the same standard? The simple answer is, they wanted a certain outcome.”

Sammy acts surprised and affronted by this. Many Unionists do. But they shouldn’t be. As I argued in my previous post, there is a hypocrisy at play here in that Unionists are decrying the lack of a cross-community requirement for this vote when the outcome of such a requirement being a factor would be Unionism foisting their own preferred outcome on the majority of the population who disagree. There was no way to square this circle that would have satisfied everyone.

During the course of the vote, more Unionist politicians weighed in, many attacking the lack of the need for cross-community consensus. Deputy First Minister Emma Little-Pengelly said

“This is the first and only key decision that this house will be voting on that absolutely tears asunder the key values and principles that other parties in this chamber championed around the Belfast/Good Friday Agreement.”

She added: “It’s only consensus and inclusion if it is a matter that is important to you, but not if it’s a matter that’s important to unionism. It is absolutely appalling.

“This quite frankly is a rigged vote.”

Her party colleague Jonathan Buckley agreed, criticising the “rigged nature of (the) vote …”.

The realpolitik of the situation is that, in relation to a deal that took many acrimonious years to negotiate, nobody in their right mind was going to hand a destructive veto to the one group of people who would demolish the entire thing without a second thought, throwing international relations between the European Union and the United Kingdom into chaos whilst they then sat back and prattled on about sovereignty, celebrating an outcome that would actually degrade life in their own land whilst expecting everyone else to clean up the mess.

A far more likely alternative was that there would be no consent mechanism at all, as the topics it touches on are explicitly reserved to the United Kingdom government. It is disingenuous to decry the consent mechanism as being undemocratic simply because it operates on a majoritarian basis when the fact we have the mechanism at all is somewhat incredible given what it impacts.

Buckley also took aim at another aspect of the Framework which rankles Unionism, in fact some argue that every MLA sitting in Stormont should vote against the mechanism on this basis, that consenting to this mechanism means abdicating democratic responsibility to the European Union in many areas.

As Buckley put it, “Members will vote on giving the authority for the EU parliament to take control of over 300 areas of law, allow them to decide the regulations by which our businesses and consumers will operate by.”

This point was re-emphasised by former UUP Party leader Steve Aiken who said that “(we) categorically say that we want to be heard, and have a say on the laws that affect us”

The TUV also agrees with this interpretation, with Jim Allister having been admonished in the aforementioned debate for repeatedly referring to Northern Ireland as an EU colony, though he did offer a robust defense of that stance when challenged. Whilst admittedly I am inclined to believe that this argument is self-serving, in that Unionists object less to this aspect of the Framework than the Framework’s existence, it is the obvious soft underbelly of the whole arrangement.

Would it not have been marvellous had this aspect of the Framework been repeatedly highlighted in previous elections over the years to inform the voting public as to where their prospective representatives offering themselves for election stood on the issue? And would it not have been also been great if there was some kind of democratic mechanism whereby our representatives, elected by an informed public, could give consent to this situation by virtue of a vote where the will of the majority could prevail and accept the trade-offs of the Framework in exchange for its benefits?

And let’s not forget Rishi Sunak’s triumph of achieving the Stormont Brake whereby our elected representatives, not a majority and not on a cross-community basis, can ask the UK government to intervene in the automatic application of EU law if they can prove that such an application is detrimental to our economy and/or society. It may be so heavily caveated as to be effectively useless, but it does represent an avenue of democratic input and it would be churlish to dismiss it completely.

Away from Unionist puritanism on the framework, the British government and the other parties had their say. In preparation for that democratic consent vote, the British government published its assessment of the Windsor Framework where it gave the arrangements their unambiguous support.

I have highlighted what I believe to be the two most important passages from the British government’s view

“The Windsor Framework is necessarily a compromise, to meet the unique circumstances of Northern Ireland- and the importance to its people and businesses of access both to the UK internal market and to the EU market. That is why the Government is clear in its aim to ensure that these arrangements continue to work practically, and command the broadest possible confidence of communities in Northern Ireland.” …

“For those reasons, it is the Government’s view that the Windsor Framework represented a considerable step forward over the original arrangements in the Northern Ireland Protocol and the difficulties they presented. The Government is clear that further improvements in these areas could also be facilitated through a closer relationship with the European Union. The Government does not believe that there are alternative or unilateral arrangements available for managing the unique circumstances of Northern Ireland subsequent to the UK’s departure from the EU.”

Prior to and during the vote, some of the other Stormont parties weighed in and reminded us that Unionism is far from speaking for everyone here on the matter. The BBC quotes several supportive politicians…

Naomi Long said that Alliance would vote in favour, arguing that“The Windsor Framework remains the only viable option to help Northern Ireland navigate the chaos brought about by Brexit,”.

Long said those voting to remove it would be causing more instability at a time when people need the opposite.”

During the vote Long added to her words by saying “the Windsor Framework was “the only game in town” and that “it was simply not possible to entirely square the circle of the challenges and contradictions posed by Brexit” but she said that “if we rebuild trust and apply creativity, I believe we can and must lessen the impact”. “While the Windsor Framework is far from perfect, it clearly provides for that softer landing that we need.”

Sinn Féin MLA Philip McGuigan argued that the post-Brexit arrangements offered “certainty and stability”. “Are there issues? Of course there are – this isn’t perfect. However, the protocol at least mitigates against the worst excesses of Brexit,”

And SDLP opposition leader in the Assembly Matthew O’Toole said that the debate should be used “as an opportunity to discuss the potential that exists within our future relationship with Europe”.

“Northern Ireland has a unique relationship with the EU, not just because of the protocol but because our people have EU citizenship by birthright and the right to re-enter the EU automatically after a referendum.”

The BBC quotes Mr. O’Toole as saying in the Assembly chamber that

“ leaving the European Union had “fundamentally damaged the UK economy” but that “Northern Ireland has had some protections from Brexit”.

O’Toole told the assembly there were “challenges” from the Northern Ireland Protocol which “need to be worked on”.

But he said the deal between the UK government and European Union was “necessary because of Brexit, because of a hard Brexit chosen by people who did not have the interests of this place at heart”.

The result of course was a foregone conclusion with the consent mechanism receiving majority support, 48 votes for to 36 against, with Unionists opposing it as a bloc.

Hilary Benn responded to the vote by saying

“This democratic safeguard has provided the elected representatives of the people of Northern Ireland with a say over the trading arrangements that will apply over the next four years. I will now proceed as required by the law, including to commission an independent review. The government remains committed to implementing the Windsor Framework in good faith and protecting the UK internal market, in a way that offers stability and works for Northern Ireland, for businesses, and for traders.”

I may not be alone in noting an air of finality in that statement, and from the statements of those who voted to support the framework in today’s vote. After all, in all three of the arenas the Framework has been challenged in during the past week, at Westminster, in the courts and in Stormont itself, the Unionist argument has been fervent but not enough to overcome the will of the majority of people living here who support the arrangements as necessary, that of multiple governments and organisations who wish to move on to other things without being bedeviled by the travails of one community in a remote region of the United Kingdom and even the very law itself.

It has also afforded the other parties here, the law and those governments the right of reply against Unionist politicians and commentators who are seemingly afforded a free run on this topic, able to rail against the problems of the Framework without interruption, and to proffer their supposed solutions without scrutiny. That didn’t happen this week. There was effective pushback from all sides, and a focus on the reality of the situation.

Unionism opposes the Framework primarily as a point of principle, that the differentiation and separation it introduces to Northern Ireland is part of the process designed to our ease our path into a Reunited Ireland. I believe that the complaints about the difficulties some face as a result of the protocol (which, while they exist, are undoubtedly a much lower price to pay than effectively carving up the countryside with a land border that would impact the lives of hundreds of thousands of us on a daily basis), and the democratic deficit in some areas of law that are a necessary consequence of remaining in the Single Market (though we did agree democratically to paying that price) are cited not as issues in and of themselves, but because they support the argument to overturn the Framework and the opposition is motivated at its core by that point of principle.

Those of us who support the arrangements do so not because we are engaged in some dastardly plot to destroy the Union using them but because we fear the alternative of a hard border on this island, an outcome Unionism seemed to not so secretly crave during the long years of the Brexit process. Back in 2016, in the aftermath of that fateful referendum, Andy Boal wrote an article entitled ‘So what happens now?’. It’s a fascinating read over eight years later, even though several of Andy’s predictions didn’t come to pass (and every single one of us was guilty of that failing at one stage or another) and it was illuminating on that shocking morning, offering us a preview of sorts even though nobody could have foreseen the twists and turns of the roller-coaster ride we had all embarked on. We stand now at the other end of that process. The deal has been signed, the arrangements implemented, consent has been given in a democratic vote. Legislative and legal efforts to thwart it have all failed.

Whatever Brexit was supposed to mean, this is it for us, at least for the foreseeable future. Unionism’s hopes on altering that outcome either rest on the rules being rendered meaningless by increasing and irrevocable alignment of the UK back with the EU (thus rendering Brexit pointless), or the advent of a hard right government happy to demolish rules and institutions heedless of the cost (which is years away at a minimum).

I expect this to be my last article on the Windsor Framework. There is nothing left to say. I am sure Unionists opposed to the arrangements will continue to talk about it, but with all paths towards its removal blocked and the reality of it bedding in, it may prove to be a one-sided conversation for a long time to come.