Northern Ireland deal highlights the DUP's trust problem with UK government

The bizarre spectacle of the new “deal” being jointly unveiled by the leader of Northern Ireland's second largest party and the secretary of state was revealing: so much of this agreement was aimed at reassuring the DUP about their place in the Union.  

Jeffrey Donaldson has some genuine prizes to show from his intransigence

The DUP leader can point to his achievement in securing quite significant changes to the post-Brexit trading arrangements originally agreed by Boris Johnson and David Frost. 

Last year's Windsor Framework introduced a “green lane” for trusted traders moving goods across the Channel that would stay in Northern Ireland, allowed goods to be sold in Northern Ireland that met either UK or NI standards and dealt with some of the real annoyances of the earlier regime for citizens (and chancellors) – on parcels, pets and post-Brexit tax policy. Donaldson can now point to further changes, with his biggest win the reduction of checks in the renamed green lane (now the internal market system) from a routine sample to checks based only on risks and intelligence and the removal of the need for additional customs forms. 

His aim will be that – for businesses who have signed up to the trusted trader scheme – the checks are as minimally different as possible from those that pre-dated Brexit. He has also secured a more symbolic “internal market guarantee” that 80 per cent of goods moving from GB to Northern Ireland will move through the internal market system, but this 'guarantee' is really a trigger point for a review to reassure the unionists that “traditional trade flows” are being protected.  

The EU will now want reassurances that these changes do not affect the basics of the Windsor Framework.

The government has made a lot of commitments to reassure unionists of their good faith

Unionists have been burnt by their experiences over Brexit. They did not trust the backstop that Theresa May negotiated, and voted down her deal even after assurances about non-divergence. The DUP then decided to throw in their lot with Boris Johnson and the ERG only to find Johnson and his party accepting a regulatory and customs border in the Irish Sea, before alienating the EU by trying to renege on the deal they signed up to in seeming bad faith. Rishi Sunak rebuilt relations with the EU – but rather than claim victory for insisting the government secure changes that the EU had previously refused to countenance, the DUP held out and refused to return to Stormont.  

Now they can also point to a package of additional bolstering. The Windsor Framework introduced the new Stormont Brake to allow NI MLAs to raise objections to updates to EU law that would apply in Northern Ireland and could meet the test of significantly affecting trade. The government has now committed to give MLAs early notice of changes to maximise the time they have to consider whether to use the brake and guidance on how it operates. The substance of the brake does not change.

There is a new commitment that the UK government will be obliged to judge the impact of any new regulations it introduces on Northern Ireland – and if there is an impact a minister will have to make a statement. As we have argued before this is just good government and could (and should) have been standard practice before. But it does not remove the possibility that the UK will diverge – if that commitment had been made, Sunak would have alienated many on his backbenches by ditching what they see is one of the big benefits of Brexit. This – and all the other legislative guarantees of what were earlier just commitments – raises the potential that the DUP could resort to the courts if the UK government does not follow through.  

There are also structures – ministerial oversight on divergence; a new working group between the UK and the NI Executive Office; a new role for the Office for Internal Market in looking at impacts; a new Independent Monitoring Panel to provide independent oversight of the operation of the Framework and to guard against gold plating. There is a commitment to an independent review of the Framework if the consent vote on its continuation passes without cross-community consent. A new UK East-West Council will promote east-West links and Intertrade UK will promote trade both ways between NI and GB.

And there are a raft of legislative changes reinforcing guarantees on access to the UK market and removing some hangovers from earlier legislation on the “all-island economy” and dynamic alignment as well as an additional (symbolic) constitutional guarantee. The UK is also envisaging taking over responsibility from the NI Executive to direct NI civil servants (who do not work for them) on how to operate remaining controls – potentially saving the embarrassment of a future DUP agriculture minister but raising some odd accountability issues.

The government is also making very welcome moves to improve understanding in Westminster and Whitehall  

There are also a long list of “practical” measures to promote Northern Ireland’s place in the Union. The government has committed to producing quarterly papers on the benefits of the union – noting that the Irish government has been more actively promoting the nationalist cause. That is backed up by measures to promote links – cultural, educational, sporting and transport, as well as making it easier for NI citizens born in the Republic to get British citizenship. They also propose to promote collaboration between the UK and the NI civil service and to provide training for UK civils servants on NI’s constitutional position, which Brexit showed was too often poorly understood. There is even a commitment to stop referring to Northern Ireland as a third country. Combined with the new impact assessments, these are all designed to stop Northern Ireland being overlooked until a crisis hits.  

There are still risks to come in the restoration of power sharing

This agreement, along with the big financial package that was unveiled in December, is a necessary condition of restoring the Executive in Northern Ireland. But they are plenty of potential pitfalls ahead.  

For starters, the new Executive inherit a horrendous in-tray. There may be money available to give the public sector pay increases, and stabilise public spending, but in the longer-run the Executive needs to make some very difficult decisions to put both spending and revenue onto a long-term sustainable basis – decisions that have been repeatedly ducked. Past practice also suggests that too often the carve-up of posts leaves the most difficult ministries to smaller parties. 

On trade arrangements, for many the proof will be in how the changes work. Will people question future checks or forms in the new internal market lane? Some are already complaining about the need to get trusted trader status before being allowed into it. Will the new impact assessments make any difference to what the UK does (spoiler – it has not done much active divergence so far anyway)?

There are also big questions about the operation of the Stormont Brake. The Alliance party and nationalists fear overuse – even though it cannot be used vexatiously – and it is a source of tension that use of the brake is for the UK government to judge. The DUP and more hardline TUV do not, by themselves, have enough votes to meet the 30 MLA threshold to use the brake – so will they be frustrated if they try to raise concerns? In truth, the real worth of the brake should be to force more serious prior consultation with NI parties to avoid the need for its use. The last thing Northern Ireland needs is for the constitutional question to be relitigated over every EU law update.

This package comes with money, but it does not come with any institutional reform to reduce the fragility that has seen repeated collapses of government. Nor does it guarantee the citizens of NI a government committed to solving long-term problems. The biggest hope may be that new Sinn Féin first minister Michelle O’Neill is determined to govern in a way that persuades waverers they have nothing to fear from nationalists and that the DUP deputy first minister is similarly committed to show that Northern Ireland can flourish inside the United Kingdom. And that together they work effectively together to put this sorry period behind them.