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Rishi Sunak’s deal has given unionists the upper hand

A unionist protestor stands under Edward Carson’s statue at Stormont. Credit: Getty.

March 1, 2023 - 10:10am

Belfast

In the 1975 referendum on Britain’s place in the then-Common Market, the two sides of Northern Ireland’s otherwise intractable sectarian divide found themselves fighting in the same corner — against European membership. For some reason this little quirk of history popped into my head yesterday as I whiled away an hour before lunch at an exhibition of old Northern Irish election posters on display in the Linen Hall in Belfast. Here we were, I thought, almost 50 years after the first referendum on Europe and the issue is still doing strange things to the political debate.

In the 36 hours or so since the publication of Rishi Sunak’s “Windsor Framework” on Monday afternoon, an odd alliance has formed to dismiss one of its most important pillars, the so-called “Stormont Brake”. Under this new lever, just 30 Northern Irish assembly members are needed from two political parties to potentially stop new EU rules applying in the province. The way it works is that once this blocking minority is formed, the British government can unilaterally veto the new rules applying in Northern Ireland. The reason this is so significant is that it gives unionist parties an instrument of their own to resist EU laws which would otherwise pull Northern Ireland away from the rest of the UK.

On the face of it, then, the brake appears to be a genuine concession from the EU. And yet the reaction of many leading Brexiteers and Remainers has been to dismiss its actual importance. A consensus seems to have formed among both supporters and opponents of Brexit that the brake does not amount to all that much because it is subject to a number of different caveats and controls, which mean that if it is ever used the whole process is likely to get bogged down in tedious diplomacy with the EU, external arbitration and even, potentially, a UK government override.

Depending on who you speak to in Belfast, though, a strikingly different story emerges. Yes, there are many here who remain deeply sceptical of Sunak’s agreement — and understandably so given what happened before. And it is true that the brake is not all-powerful. But from the perspective of nationalist parties, the Alliance, or, indeed, the Irish government, the Stormont Brake looks less anything but a powerless sop to unionism. If anything, the brake looks too powerful, the bar for using it too low — and with potentially far-reaching consequences.

To understand why, one has to dig into the details a little further. In the UK Government’s command paper, Sunak is offering to go much further than the brake itself. He is proposing a guarantee that the UK Government will use its veto after a petition of concern unless cross-community consent is found not to. The effect of this, of course, is that unionism would get a kind of double veto — or, at least, the power to press a brake on new EU laws and the power to then lock that brake in place. 

The effect of this double guarantee is to increase the likelihood that the UK government will veto EU laws from applying in Northern Ireland. This in turn increases the risk of divergence between Northern Ireland and the Republic with potentially retaliatory measures from the EU. 

From unionism’s perspective, this isn’t the primary concern. But for Irish nationalists it is a problem, because the brake and lock are not much use to them. The non-sectarian Alliance party is furious with the proposals, correctly observing that the brake and lock system means unionism’s votes in Stormont will be more powerful than theirs. In Belfast yesterday they made their view clear to officials. In time, then, the criticism of the new Stormont Brake may not be that it is too weak, but too strong.


is UnHerd’s Political Editor. He is the author of Betting The House: The Inside Story of the 2017 Election.

TomMcTague

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Marcus Leach
ML
Marcus Leach
1 year ago

Rather than refer to spin the British government has put on the “Stormont Brake”, reading the EU’s published description of how it sees the provisions working is more revealing.
Referring to the European Commission’s Q&A on the agreement (https://ec.europa.eu/commission/presscorner/detail/en/qanda_23_1271) :-
The Brake only applies to EU laws and rules amending or replacing parts of the existing regime, not where the EU legislates or promulgates rules in a matter it has not previously addressed. Laws that expand the existing regime in to new areas are precisely the ones a NI government would be most likely to want to block, but will have no power to.
The Brake won’t even apply to all EU amending legislation. but only to amendments and replacement of a “subset of acts listed in the Protocol, not to all acts“.
The Brake can only be used :”where the amended or replacing EU act, or a part of it, significantly differs in scope or content from the previous one and application of such amended or replacing act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.” 
The conditions necessary for the Brake are, as per usual in EU law, vague and open to interpretation as to what, for example, “significantly differs” or “significantly impacts” means in practice. The matter will be resolved through “arbitration”. In other words, after long, protracted wrangling.
But the EU are clear that the Brake “would be triggered under the most exceptional circumstances and as a matter of last resort” and.. only after having used every other available mechanism
If the UK does use the Brake, the matter will go to the Joint Committee to find a resolution. If no resolution is forthcoming, the EU can have recourse to “remedial measures”. In short, even in the inconceivably unlikely event that a Brake is instituted and the UK government doesn’t fold in the Joint Committee, the NI government may get manage to get an EU law disapplied, but the EU then has a range of measures it can punish them with. Under such a threat, NI governments will be extremely wary of pressing forward with a request for the Brake.
I have to disagree with the Author. The “Stormont Brake” procedure sets such a high bar, requires such a torturous process, depends on our spineless government and Civil to progress and holds such threats of reprisals, such that the EU can have complete confidence that there is not the slightest chance that it will ever be used. As with any non-binding commitments Sunak might trot out, It is entirely worthless.

Last edited 1 year ago by Marcus Leach
Katharine Eyre
KE
Katharine Eyre
1 year ago
Reply to  Marcus Leach

Going by what you’ve written (I still don’t understand the article or this alternative view about the brake being “too effective”), then defining the brake very restrictively is absolutely common sense.
From the point of view of the EU, which doesn’t want one part of the single market to diverge from the rest of it…but also from the point of view of the UK government. Define it too broadly and you’ve got a recipe for permanent wrangling which is going to cost an unreasonable amount of time, money and nerves. And is going to ensure that we’re all going to be talking about the DUP for the next 20 years. Which no one wants…apart from maybe the DUP.
The message is meant to be: save this for when you are REALLY concerned (preferably never)…don’t use it just to make trouble or be obstructive.

Katharine Eyre
KE
Katharine Eyre
1 year ago
Reply to  Marcus Leach

Going by what you’ve written (I still don’t understand the article or this alternative view about the brake being “too effective”), then defining the brake very restrictively is absolutely common sense.
From the point of view of the EU, which doesn’t want one part of the single market to diverge from the rest of it…but also from the point of view of the UK government. Define it too broadly and you’ve got a recipe for permanent wrangling which is going to cost an unreasonable amount of time, money and nerves. And is going to ensure that we’re all going to be talking about the DUP for the next 20 years. Which no one wants…apart from maybe the DUP.
The message is meant to be: save this for when you are REALLY concerned (preferably never)…don’t use it just to make trouble or be obstructive.

Marcus Leach
ML
Marcus Leach
1 year ago

Rather than refer to spin the British government has put on the “Stormont Brake”, reading the EU’s published description of how it sees the provisions working is more revealing.
Referring to the European Commission’s Q&A on the agreement (https://ec.europa.eu/commission/presscorner/detail/en/qanda_23_1271) :-
The Brake only applies to EU laws and rules amending or replacing parts of the existing regime, not where the EU legislates or promulgates rules in a matter it has not previously addressed. Laws that expand the existing regime in to new areas are precisely the ones a NI government would be most likely to want to block, but will have no power to.
The Brake won’t even apply to all EU amending legislation. but only to amendments and replacement of a “subset of acts listed in the Protocol, not to all acts“.
The Brake can only be used :”where the amended or replacing EU act, or a part of it, significantly differs in scope or content from the previous one and application of such amended or replacing act would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.” 
The conditions necessary for the Brake are, as per usual in EU law, vague and open to interpretation as to what, for example, “significantly differs” or “significantly impacts” means in practice. The matter will be resolved through “arbitration”. In other words, after long, protracted wrangling.
But the EU are clear that the Brake “would be triggered under the most exceptional circumstances and as a matter of last resort” and.. only after having used every other available mechanism
If the UK does use the Brake, the matter will go to the Joint Committee to find a resolution. If no resolution is forthcoming, the EU can have recourse to “remedial measures”. In short, even in the inconceivably unlikely event that a Brake is instituted and the UK government doesn’t fold in the Joint Committee, the NI government may get manage to get an EU law disapplied, but the EU then has a range of measures it can punish them with. Under such a threat, NI governments will be extremely wary of pressing forward with a request for the Brake.
I have to disagree with the Author. The “Stormont Brake” procedure sets such a high bar, requires such a torturous process, depends on our spineless government and Civil to progress and holds such threats of reprisals, such that the EU can have complete confidence that there is not the slightest chance that it will ever be used. As with any non-binding commitments Sunak might trot out, It is entirely worthless.

Last edited 1 year ago by Marcus Leach
Katharine Eyre
KE
Katharine Eyre
1 year ago

“He is proposing a guarantee that the UK Government will use its veto after a petition of concern unless cross-community consent is found not to”.
Is this sentence written correctly? It’s kind of key to understanding the article and yet I can’t make much sense of it. Do you mean:
“He is proposing a guarantee that the UK Government will use its veto after a petition of concern unless cross-community consent is found not to“?
I.e. if a petition of concern is raised then the UK government will first investigate the situation and see whether x-community consent can be established? And, if not, use its veto?

Katharine Eyre
KE
Katharine Eyre
1 year ago

“He is proposing a guarantee that the UK Government will use its veto after a petition of concern unless cross-community consent is found not to”.
Is this sentence written correctly? It’s kind of key to understanding the article and yet I can’t make much sense of it. Do you mean:
“He is proposing a guarantee that the UK Government will use its veto after a petition of concern unless cross-community consent is found not to“?
I.e. if a petition of concern is raised then the UK government will first investigate the situation and see whether x-community consent can be established? And, if not, use its veto?

kevin ward
KW
kevin ward
1 year ago

I heard or read that the EU can claim damages from UK if the brake is use – who determines the level thereof?

R Wright
RW
R Wright
1 year ago
Reply to  kevin ward

One can only assume EU commissioners in all their wisdom

R Wright
RW
R Wright
1 year ago
Reply to  kevin ward

One can only assume EU commissioners in all their wisdom

kevin ward
KW
kevin ward
1 year ago

I heard or read that the EU can claim damages from UK if the brake is use – who determines the level thereof?

Dougie Undersub
Dougie Undersub
1 year ago

The Alliance Party doesn’t seem to understand the GFA, strangely. Both the Unionist and Nationalist votes are more powerful than anyone else’s – by design.

Dougie Undersub
Dougie Undersub
1 year ago

The Alliance Party doesn’t seem to understand the GFA, strangely. Both the Unionist and Nationalist votes are more powerful than anyone else’s – by design.

j watson
JW
j watson
1 year ago

Is the calculus that given the i) prior consultation process, and the huge benefits to NI business community that stem from this the likelihood of a major disagreement and brake deployment will be v rare and worth the risk to get this over the line ii) getting Stormont functioning properly deemed as important in all this by both UK and, helpfully, the EU (thus probably indicating the Republic’s emphasis on this) ?
I doubt Sunak/VDL will mind this interpretation to help settle things. It also shows that both sides are trusting Stormont to show maturity. That’s a risk, but just perhaps a signal of such trust can help

j watson
JW
j watson
1 year ago

Is the calculus that given the i) prior consultation process, and the huge benefits to NI business community that stem from this the likelihood of a major disagreement and brake deployment will be v rare and worth the risk to get this over the line ii) getting Stormont functioning properly deemed as important in all this by both UK and, helpfully, the EU (thus probably indicating the Republic’s emphasis on this) ?
I doubt Sunak/VDL will mind this interpretation to help settle things. It also shows that both sides are trusting Stormont to show maturity. That’s a risk, but just perhaps a signal of such trust can help

William Cameron
WC
William Cameron
1 year ago

The Brake is Stormonts not the DUPs

Steve Murray
LL
Steve Murray
1 year ago

Precisely, and there’s the rub. If the UK government were trying to force the hand of the DUP into returning to power-sharing at Stormont, the Brake couldn’t be better designed. If the UK government wished the DUP to appear unreasonable and not return to Stormont, it couldn’t be better designed. I don’t think the DUP will gain any political heft from the Windsor Agreement, and nor should they, but it might just make them look so intransigent that their support falls off a cliff.

Dermot O'Sullivan
DO
Dermot O'Sullivan
1 year ago
Reply to  Steve Murray

A reasonable interpretation of what we’ve heard so far.

Dermot O'Sullivan
DO
Dermot O'Sullivan
1 year ago
Reply to  Steve Murray

A reasonable interpretation of what we’ve heard so far.

Steve Murray
Steve Murray
1 year ago

Precisely, and there’s the rub. If the UK government were trying to force the hand of the DUP into returning to power-sharing at Stormont, the Brake couldn’t be better designed. If the UK government wished the DUP to appear unreasonable and not return to Stormont, it couldn’t be better designed. I don’t think the DUP will gain any political heft from the Windsor Agreement, and nor should they, but it might just make them look so intransigent that their support falls off a cliff.

William Cameron
WC
William Cameron
1 year ago

The Brake is Stormonts not the DUPs