Roderick Crawford: The Windsor Framework will not be re-negotiated so unionism is stronger back in Stormont

​Looking back, what remains surprising is how reluctant the EU was to recognise the failure of the ‘operational’ solution it had forced on the UK and how long and how much work was required to get it to face up to its substantial misreading of both Northern Ireland’s economy and the Belfast (Good Friday) Agreement. Ultimately, the EU’s original position was very much about punishing the UK for leaving, maintaining some EU traction on UK divergence from common rules and demonstrating the advantages of EU power backing its members.

Only when Russia’s invasion of Ukraine put this squabble into perspective did the scales of ‘realpolitik’ tilt in favour of the UK; Europe recognised once more its need of the UK’s hard power and the need to address its concerns over the Northern Ireland Protocol. By then it was the UK that had done its homework and had developed and resourced a negotiating team able to match the EU. By that time Maroš Šefčovič had come to realise that the EU’s position — that the protocol only had to be implemented and all would be well — was nonsense. The DUP’s collapse of the institutions lent a hand to the UK negotiators in demonstrating that the protocol designed to protect the Belfast Agreement had instead brought it near to collapse. This ought to have been fatal to their position, but such is the thickness of their skin that little penetrates. They had to make major concessions but there was no way they would accept a collapse of their policy— as much as that may have been deserved. A negotiated solution could never deliver this: the power imbalance precluded it.

The Windsor Framework represents the end of UK renegotiations on the protocol. This is now a sealed deal as far as the UK government, Parliament, and the EU are concerned. Even among those opposed to a return to Stormont, few really believe that the UK government can return to Brussels and ask to reopen the negotiations again. To do so would collapse the credibility of the UK government and of the prime minister at home, abroad and in his own party. The match is over, and the players have left the pitch; disappointing though the score is for most unionists. There will be no rematch.

No 10 is convinced it delivered on the seven tests set by the DUP. Whether that is so is arguable. There is certainly something the government can present against each test that is positive, even though that falls short of the hopes of many unionists, but there are tests where the results are disappointing, to say the least. It is arguable that the Northern Ireland Protocol Bill — which appeared just under a year after the seven tests — inflated expectations; it surely promised in theory far more than could be delivered in practice, even if it could have passed the House of Lords without substantial amendment and found a majority in the Commons willing to overturn amendments in the face of threats of a trade war with the EU and a meltdown from business.

Much had changed since the bill had been introduced into the House of Commons; with Conservative MPs threatened by electoral wipe out, and the Johnson administration collapsing, purism on Brexit was in decline by summer of 2022. The bill itself could never be a solution, with Labour rejecting it and promising its repeal, and in the face of EU rejection and US opposition. Its real function had always been to help focus Brussels and open the door to renegotiation; a mutually agreed solution would always require compromises that were not required in the bill. That these compromises lie where they do is a bitter pill to swallow.

To refuse to re-enter Stormont on the basis of limited though significant EU law applying to Northern Ireland does not lead to a further renegotiation of the Windsor Framework, and it does not build a stronger Union or develop unionism. The fourth of the seven tests set by the DUP — that “new arrangements must give the people of Northern Ireland a say in making the laws that govern them” reflects the fact that EU law would be applied; that is why it was concerned with addressing the democratic deficit that arose from the application of EU law.

It is entirely respectable to be opposed to application of these laws, and to resent their application to Northern Ireland, but it was not a requirement of the seven tests set by the DUP in 2021 — tests which have been at the forefront of their official and public demands to the UK government and at the heart of its negotiations with the EU. There is no credibility in treating this as a red line.

Checks and restrictions on trade within the UK remain a real problem for unionists, both in constitutional and practical terms. Unionists are understandably aggrieved that more could not have been achieved. Whilst the Windsor Framework offers significant practical gains on agri-food and retail, and ought to make restrictions almost non-existent for citizens, the treatment for most goods for processing and much else remain subject to customs formalities. This is where UK negotiators met EU red lines and where UK leverage met the immovable rock of the EU’s worldview, its interests, law, its trading strength and the raison d’etre of the Commission. We have reached the current limit of concessions and the end of the negotiations. At this time, unionism has no ability to gain any further concessions from the EU because the UK government, its only interlocutor, cannot (and will not) return to the negotiating table and the EU certainly would not respond even if it tried. It would only invite humiliation and cause a collapse in the government’s credibility at home and abroad.

There is, however, something that unionism can do. It can adopt a more practical approach. Firstly, dropping the demand that EU law should not apply in Northern Ireland — and thereby closing off not only a dead-end but proving to London that unionism is engaging in realism. London can offer reassurance on divergence between Great Britain and Northern Ireland — the effects of which are likely to be extremely limited, while the overall position of Northern Ireland offers potential advantages — real even if they can be overplayed.

Unionism should be looking at skills strategy, inward investment and the wider policy frameworks required to deliver the potential benefits that its unique economic status of being in our Union but in the Single Market for goods can bring. Importantly, this is an economic advantage that a united Ireland can never provide, given that EU-UK trade arrangements would not be able to confer advantage on one member state over any others. That matters because the protocol is the old argument: the new one is the case for the Union and that is best made with devolved government in place, working flat out for the people of Northern Ireland.

Meanwhile, if unionists return to Stormont they would regain agency on the Windsor Framework — albeit limited to addressing practical problems. Alongside the work of the UK and EU in the Joint Committee, there is also the role of the Independent Review of the Windsor Framework. The UK government has made a commitment that if the assembly does accept the continuation of Articles 5-10 of the Windsor Framework, which it surely will, but that vote does not meet the thresholds required for cross-community consent (which is most likely), then the UK government will set up an independent review of the Windsor Framework. This review would provide unionism with an independent and practical assessment of problems with the operation of the Windsor Framework and solutions to those problems.

The independent review was set out in paragraphs 7-9 of the UK’s Unilateral Declaration on Consent of 19 October 2019 and sits alongside Boris Johnson’s protocol agreement. On 24 March of this year, a new Unilateral Declaration by the United Kingdom on the democratic consent mechanism in Article 18 of the Windsor Framework was published (and appears with an EU declaration noting it on the EU’s own website). This states that the UK government will present recommendations of the Independent Review to the UK-EU Joint Committee that oversees the implementation of the protocol. In presenting those recommendations, the UK government can also advocate for those recommendations — providing an opportunity where the UK can once more be a strong advocate for change across the whole piece of the protocol. Unionism would have its interlocutor back. Meanwhile, further improvements can be achieved to redress problems as they emerge; there is every reason to suppose that the EU — prepared by its enhanced engagement with businesses and consumers alike in the coming months and years, by the UK and the NI Executive’s engagement in the Joint Committee as well as in due course by the independent review — will work to address real-life problems. Not least as it increasingly realises that the real level of threat to the EU’s Single Market is so low and the desire to punish the UK for Brexit has gone. Unionism fully re-engaged — making the case for the Union through effective devolved government, lobbying for the most favourable implementation of the Windsor Framework whilst ensuring that the independent review is truly independent and authoritative when it begins its work in just over a year’s time — restores agency to unionism. The opportunity and the necessity to engage on all these points lies immediately before unionism, not at some point in the future, with much work to be done on influencing the independent review’s make-up, its precise terms and, crucially, its resources.

If the promises of the Windsor Framework don’t materialise, including those set out in the UK government’s command paper — and cannot be addressed by the Joint Committee or through the independent review — then unionism has every right to withdraw from the institutions. With such a prospect, its concerns will have to be taken into account by both the EU and the UK. The collapse of political consensus and the non-operation of the institutions were a key indicator that the protocol had damaged and not protected the Belfast Agreement. In practice, as the former Irish DFA official Tim O’Connor told the NI Affairs Committee earlier this year, ‘Implementation is continued negotiation’, and that offers numerous opportunities to resolve problems and improve conditions for East-West trade, whilst maintaining stability in government institutions.

Meanwhile, prospects of divergence within the UK are limited, and their implications immaterial. Northern Ireland’s goods will always find an open market in the rest of the UK and any regulatory divergence is likely to be in services that are not regulated by the EU’s Single Market rules in Northern Ireland. Goods trade is based on international standards and manufacturers in Great Britain have shown no enthusiasm for regulatory divergence with the EU in standards for goods. The EU trading block is essential to UK manufacturers, exactly why manufacturers in this part of the UK have themselves supported maintaining EU standards here. Businesses are concerned that access to supplies from Great Britain is as frictionless as possible. Making sure that ‘what is possible’ is made far less frictionless than the Windsor Framework will allow on its current form will be a major element of the work that needs to be done. That will require detailed engagement.

It would make sense to appoint a group under a heavyweight chair to monitor and coordinate unionism’s engagement with the Joint Committee and the independent review, leaving the party leaderships to focus on wider issues where they can have greater traction, with a general focus on the governance of Northern Ireland. The priority ought to be delivering and demonstrating the benefits of the Union — benefits that still dwarf those of a united Ireland.

Staying out of devolved government won’t contribute either to holding the UK government to account on its promises in the command paper on the Windsor Framework or to winning the big argument that lies ahead. The gains of walking out have been banked in the Windsor Framework and the UK commitment to the independent review. Only going back into government restores unionism’s influence and leverage over these trading issues. Most importantly, a return to Stormont is necessary to restoring unionism’s ability to face the challenges going forward, which include, on current trajectories, the prospects of a border poll. Fortunately, there is nothing inevitable — or advantageous — about a united Ireland.

Unionism is not in a comfortable position but not yet an unrecoverable one; the choices ahead are far from easy, but they are clear.

• Roderick Crawford is a Senior Research Fellow at Policy Exchange and author of ‘The Northern Ireland Protocol: The Origins of then Current Crisis’ (Policy Exchange, 2021) and ‘The Northern Ireland Protocol: The Clash of Two Treaties’ (Policy Exchange, 2023). He was founder and editor of ‘Parliamentary Brief’ 1992-2012