As Rishi Sunak’s Windsor Framework deal with the EU is approved by parliament, why it is Northern Ireland that has exposed the fatal weakness of Euroscepticism
Peter Ramsay is Professor of Law at the London School of Economics. He is also one of the founding editors of The Northern Star
This article originally appeared at The Northern Star
The handful of Tory rebels against Rishi Sunak’s Windsor Framework are not wrong about the deal. It will sustain a deeply undemocratic regime in Northern Ireland, and it will radically limit the potential for the UK government to diverge from EU regulations without weakening the Union between Great Britain and Northern Ireland. However, the fact that they have been unable to prevent its passing sums up the impasse that has dogged Brexit ever since 24 June 2016 and, more especially, the political inadequacy of Euroscepticism.
The Framework has renegotiated some details of the NI Protocol in a way that might make trade between GB and NI a little easier (at least for large firms), but it is the Protocol all the same. The trade border between GB and NI remains. It may be slightly easier to trade across that border than it would have been without Sunak’s deal, but NI remains in the Single Market, where the EU makes the rules and the ECJ interprets them, and the people of the territory will have no representation. Costs for GB firms that continue to trade with NI will continue to rise. The Northern Ireland Assembly gets some slightly expanded opportunities to veto new EU law, but the practical impact of the so-called ‘Stormont brake’ is dubious. The EU has conceded very little on the application of its tax rules and nothing on the application of its state aid rules. In future intervention by the British state to help British firms will either have to comply with restrictive EU state-aid rules or any firms that benefit will have to cease trading in NI.
The substantial political achievement of the Windsor Framework is to kill off any lingering possibility that Boris Johnson’s Northern Ireland Protocol Bill or something like it might more radically disrupt the effects of the Protocol. Sunak has firmly consolidated the deal that Johnson rushed through parliament in 2019, in order to ‘Get Brexit done’, and it is a deal that leaves UK governments with a dilemma. If they diverge from EU regulations, they weaken economic relations between GB and NI; if they don’t diverge, in order to sustain an internal UK market, Brexit will seem to have been pointless as a reform to the UK’s political economy. With all major parties committed to both the Union and the Protocol, the slow strangulation of Brexit looks set to continue.
Sunak’s deal, and the Protocol itself, which the deal has decisively reinforced, clarifies the true choice that Brexiteers have always been faced with but have chosen to duck. If Brexit is to succeed as a project of self-determination outside of the legal control of the EU, the UK either needs to assert its sovereignty over NI, and insist that the trade border coincides with the political border that winds through the Irish countryside, or give up the Union. However, after early efforts by Her Majesty’s Government to get Brussels and Dublin to agree to high tech customs arrangements on the land border were rebuffed, British governments have looked for one compromise or another. They have not been willing, even as a negotiating tactic, simply to insist that Brexit was a decision made by the UK, and that NI will, like the rest of the UK, no longer be part of the EU’s Single Market. To do so would in the context of NI have been a high-stakes strategy.
Insisting on UK sovereignty in NI would have entailed putting at risk Britain’s entire system of government in the province. That system is based on the Good Friday Agreement (GFA) which constitutionalises the cooperation of the Dublin government (and by implication of the EU itself) in the running of NI, and it relies on the engagement of nationalist parties in the devolved institutions at Stormont. These partners were all opposed to Brexit and to a trade border on land. Moreover, putting the GFA at risk would have jeopardised Whitehall’s relations with Washington which has always acted as the underwriter of the GFA. And all that would have to be risked without any clear idea of how else the province might be governed.
Some Unionists argue that it is the Protocol that is now putting the GFA at risk, since the Democratic Unionist Party may continue to boycott the Assembly and devolved government in protest at the degree of separation of NI from GB that it achieves. Unionism will likely endure another round of its familiar internal divisions, as diehards hold out while the mainstream recognises the ultimate dependence of Unionism on what the British Conservative Party wants. Boris Johnson talked up neutralising the Protocol, but the Tory Party got rid of Johnson and made its peace with the Protocol. The ongoing paralysis of the Stormont institutions that has forced Whitehall to run the province directly through the Northern Ireland Office may continue. But as yet nobody publicly countenances a return to direct rule as the official future of NI.
At no point in the process did the Brexiteers of the Conservative and Unionist Party, really face up to what would be involved in calling Dublin and Brussels’ bluff over the Protocol (or indeed the ‘backstop’ before it). At least not in public. Calling the EU’s bluff required the Tory party to embrace direct rule from Whitehall as the future of Northern Ireland. The Tories complained about the Protocol (which their own government negotiated), even postured with the Protocol Bill about neutralising it. But they did not make a plan for what would happen in the event that the Protocol deal failed. And this exposes the ideological delusion of Euroscepticism that has dogged Brexit from the beginning.
The Eurosceptics imagined that the source of Britain’s weakened sovereignty was an external one, lying in the oppressive rule of foreign bureaucrats and judges in Brussels and Luxembourg. This view was summed up by Nigel Farage when he proclaimed the 23 June 2016 to be the UK’s ‘Independence Day’. But it was a view that mistook the appearance of the EU for its essence. In truth the source of Britain’s weakened sovereignty was internal, in the weakened relations of political representation at home. When law and policy is made by ministers in collaboration with foreign governments behind the closed doors of the diplomatic forums of Brussels, and then returns home as superior law to any made by parliament, the relation of political representation through which the state acquires its authority is necessarily weakened. And leaving the EU is not by itself enough to address that weakness.
Britain has left the EU, but its government does not really have much capacity to diverge because over the years of EU membership Britain’s political system has lost the strong political relations with the electorate that it used to enjoy, and Brexit itself has not strengthened them. In 2019 the populist Boris Johnson won a crushing mandate from the Red Wall but was unable to articulate a programme that could make anything of it. The Thatcherite domestic programme of the Eurosceptics was never popular in the UK, and it crashed and burned with the short-lived government of Liz Truss. The next election is Labour’s to lose, but the party still appears too desperate to distinguish itself from the vulgar British masses by pursuing the fashionable causes of gender self-identification, empire-bashing and net zero. In the meantime, Sunak’s securing of the Protocol, which will tend to stymie the development of a new post-Brexit political economy, merely reflects this persistent deficit of political representation.
Nowhere has the failure of political representation in the British state been deeper or longer lasting than it has in Northern Ireland. Born out of an armed Tory rebellion against the parliamentary majority for Ireland’s Home Rule just before the First World War, Northern Ireland’s divisions over sovereignty and national identity are such that it has never been ruled in the same way as the rest of the UK, and it depends on wholly exceptional arrangements. To this day Northern Ireland’s parties do not stand for election in the rest of the UK and the parties that represent the rest of the UK make no effort to represent the people of Northern Ireland. After 75 years of emergency rule, oppression and violence, the province could only be stabilised by intergovernmental collaboration with another state — that is, by creating an EU in miniature — the whole deal being guaranteed by the USA. The Tory Eurosceptics were unable to grasp the problem which the failed statelet created by their forebears now presented to British sovereignty, any more than they could face up to the weakness of Westminster’s authority in Britain itself. They were left talking the talk about British national sovereignty, but unable to walk the walk.
The Eurosceptics were blind to the real internal source of the British state’s deficit of sovereignty as an EU member state. There could hardly be a more fitting place for the graveyard of Euroscepticism than Northern Ireland, where the British state has always lacked adequate authority to rule unaided. In the wake of Euroscepticism, the partisans of national sovereignty have no reason to maintain its illusions. The Union of Great Britain with Northern Ireland is deadly for Britain’s sovereignty. We need to bring it to an end.
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