The Stormont Brake – Brexit over or future headache?

Yet soon enough, the plot twisted dramatically.

Before the weekend had lapsed, our EU negotiating teams’ WhatsApp channels were buzzing with rumours that the UK government’s forthcoming Internal Market Bill threatened to “unilaterally dis-apply” core elements of it.

The unilateral dis-application of an international agreement, painstakingly negotiated by the UK government and its top civil service, triumphantly paraded around by the prime minister and overwhelmingly voted by the House of Commons just months earlier, is a rather serious matter.

Of course we knew that some of the troubles with finding a solution to Brexit in Northern Ireland had always been very much a Westminster affair.

Foster was forced to backtrack on her statements of pragmatism by her own Unionist kindred in Belfast that weekend. But already for the seven months since its entry into force, the UK government in London had never given talks on the implementation on the protocol a chance, or worse, had obstructed them.

Brexit observers were accustomed to Northern Ireland politics being also, may we say, the shuttlecock of a certain class of English Tory politics.

Still, in Brussels the stupefaction over London’s volte-face was real.

Now, a little less than three years on, a new EU-UK deal has been struck and a novel Northern Ireland Protocol is coming into being.

Despite European Commission demonstrations to the contrary, that is what is at stake. The so-called Windsor Framework is using a hitherto inconspicuous article of the EU-UK Withdrawal Agreement to substantially alter the current and future rules in Northern Ireland relating to VAT and excise, agri-food, health standards, customs checks and controls and other minor issues such as international trade terms.

Article 164(5) point (d) is a fascinating creature of the deep: it empowers the EU-UK Joint Committee to make amendments to the Withdrawal Agreement and the Northern Ireland Protocol, until the 31 December 2024, that are necessary to correct errors, address omissions or other deficiencies or situations unforeseen when the agreement was signed “provided that such decisions do not amend essential elements” (sic).

Some would say, don’t quarrel too much with the intricacies of the law.

The simpler fact is that there has been a fourth or fifth major EU-UK Brexit negotiation (depending on how you count), and some of its facets are well worth noting for the Brexit history books.

Shrouded in the intense confidentiality of a “negotiation tunnel” since early December, this renegotiation took place without any (European) Council guidelines, mandate or involvement. Members states and the European Parliament, which, once upon a time, used to scrutinise every twist and turn with their magnifying glasses, now face a fait accompli.

There are also significant aspects of continuity.

The protagonists of this renegotiation are none other than the supporting actors of the previous one, in the persons of Commission director-general Stéphanie Riso on the EU side and Sir Timothy Barrow and ambassador Lindsay Croisdale-Appleby on the other.

All the elements in the Windsor Framework were also somehow on the table in 2018-19, including a role for the Stormont Assembly, except for that they were never agreed by the EU.

This begs the question, what is it that explains the U-turn now? There are two narratives at play.

One is that the EU has burnt through a lot of previous red lines and conceded to London, which must somehow have been right all along.

As The Economist writes, Brussels cleverly maximised its leverage at earlier stages as an “inflexible bureaucracy capable only of ticking boxes”, but this act perhaps folded over time and under pressure.

The other explanation is that of seasoned Brexit-commentator Fintan O’Toole writing in The Guardian. He suggests that pretty much everything that has now been agreed was there to be negotiated two years ago (if not earlier), but that “the last thing Brexiteers wanted was to get Brexit done.”

In October 2021 the Commission tabled radical ideas for simplification that Liz Truss spent her best time in the Foreign Office and Number 10 ignoring.

DUP win?

Still at face value, this is a momentous victory for the DUP. The so-called ‘Stormont brake’, while not a full “pick and choose” mechanism in EU single market rules, does amount to a clear veto possibility for the UK government, directive-by-directive, at the behest of a minority in the Northern Ireland Assembly.

It therefore, rather mechanically, is a headache for EU but this is surely a calculated risk. The bet must be that with all the facilitation there will not be much for Stormont to complain about in the future or that the UK government will agree with them on.

In this, the final outcome is very much a victory not worth winning for the DUP and other Brexiteers.

Strife around the protocol was the last straw they could hold on to. Not only has Brexit made everyone poorer and the mood turned against it, from now on, “the pipeline of complaint that fed the teeming springs of outrage” has been cut off, as Fintan O’Toole writes.

The history of Brexit has been a British catharsis, the gradual process of releasing and providing relief from the strong emotions and repressed resentment towards the continent that should have no place in the modern world.

For the EU the seven years of negotiation have been something equally existential. As I think back to the weekend early September 2020, the first instinct at the top floors of the Berlaymont was to cut off negotiations.

But in the end, cooler heads prevailed and the decision was made to carry on and, somehow, “metabolise” the affront. Just as the UK has used this time to expel decades of Brexit lies, Brexit has been the EU’s self-discovery and transformation from a system made for dealing with each other to a system made for dealing with others.

In other words, in a world riddled by crises, it was the EU’s first major test as a power in tormented times.