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DUBLIN — With Brexit, the devil is always in the detail.
New legislation published Monday enacting British Prime Minister Rishi Sunak’s much-heralded Windsor Framework makes clear that unionists in Northern Ireland will be able to object to new EU laws — but won’t hold the power to veto them.
Careful reading of the draft regulations enacting into law the so-called Stormont Brake shows that the power to block the introduction in Northern Ireland of any new EU goods standards — essential for Northern Irish exporters to observe if they want to maintain barrier-free trade with neighboring Ireland and the wider EU — will lie exclusively with London, not Belfast.
And the legislation shows the U.K. government ultimately reserves the right to override any unionist objections, citing “exceptional circumstances.”
Such caveats have proven a dealbreaker for some unionists already highly skeptical of the prime minister’s claims to have allayed their chief concerns over the much-maligned Brexit trade protocol that keeps Northern Ireland subject to EU goods rules.
“These opt-outs render the Stormont Brake useless,” said hardline Democratic Unionist MP Sammy Wilson.
He complained previous U.K. assurances that the Stormont Brake would deliver an effective “unionist veto,” promoted particularly by Northern Ireland Secretary Chris Heaton-Harris, have been proven “totally incorrect” now that he’s had a chance to read the published rulebook.
The Democratic Unionists announced Monday they would vote against the Windsor Framework (Democratic Scrutiny) Regulations when they are put to a U.K. House of Commons vote Wednesday, ending weeks of speculation about their intentions.
The DUP, with only eight votes in a 650-seat House of Commons due to give overwhelming support to the regulations, cannot stop the law from being enacted — though its opposition may prove influential in convincing Euroskeptic Tory MPs to follow suit.
But Democratic Unionist leader Jeffrey Donaldson, eyeing the need to minimize internal party splits and potential losses in local council elections in May, emphasized that his party would not indefinitely block the revival of power-sharing at Stormont — and hopes in coming weeks to coax the U.K. government to deliver more of the DUP wish list.
Donaldson stressed that a Wednesday vote against the Stormont Brake did not mean that the DUP was rejecting the wider Windsor Framework, merely maintaining a critical stance in hopes of edging the U.K. government closer to unmet DUP demands.
Under the new regulations, unionists — a minority in the mothballed Northern Ireland Assembly — would have sufficient numbers to file a formal objection against the local introduction of any new EU law changing goods standards. The regulations specify that 30 members from at least two parties will be sufficient for any “petition of concern” to the U.K. government to be heard.
This means, in practice, that lawmakers from the Democratic Unionists (25 seats) and the moderate Ulster Unionists (nine seats) must file any objection jointly. Given that the Ulster Unionists, unlike the DUP, opposed Brexit and are more positive on maintaining barrier-free trade with the EU, even attaining this two-party, 30-signature threshold can’t be presumed.
Any successful unionist petition would trigger a review of the proposed law’s local impact in Northern Ireland in the U.K.-EU Withdrawal Agreement Joint Committee. It meets regularly to manage and resolve post-Brexit trade tensions.
While any EU law challenged by a unionist petition wouldn’t go into immediate force in Northern Ireland pending these few weeks of deliberations, the London-Brussels dialogue might well result in an agreement that the law doesn’t risk sufficient disruption to Northern Ireland trade to merit a British government veto.
Any joint U.K.-EU agreement to proceed with rolling out that EU law would then be subject to a formal vote at the Northern Ireland Assembly at Stormont.
Passage would require “cross-community consent” — Stormont jargon for a vote that fails unless both the British unionist and Irish nationalist camps agree.
But this stipulation doesn’t mean the unionist minority would wield a veto over U.K. decision-making. Instead, as the regulations detail, the U.K.’s secretary of state for Northern Ireland would not be legally bound by the Stormont vote.
The Stormont Brake rules specify that the secretary of state could announce in the House of Commons that the EU law will apply despite unionist objections. In this scenario, the U.K. government could justify its decision by citing “exceptional circumstances,” or its own judgment that the EU law “would not create a new regulatory border between Great Britain and Northern Ireland.”
The regulations state that such a barrier must be seen to “materially divert trade or materially impair the free flow of goods.”
“For weeks, the Windsor Framework has been oversold,” Wilson said. “Now the wildest assertions are being laid bare as its details are examined and publicly revealed.”
