The following day, the government published the Command Paper entitled, ‘Safeguarding the Union’, detailing the deal which it had negotiated in secret with the DUP – a party which received just 21.3% of first preference votes and a mere 25 of the 90 seats in the Assembly Elections in May 2022.
It is a highly partisan document mentioning ‘the Union’ over 120 times! Crucially, it ignores, as Professor Katy Hayward has pointed out, the commitment in the Belfast/Good Friday Agreement (GFA) that it will exercise power ‘with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions’. Arguably, it goes much further and abandons part of Strand Two of the GFA.
New legal duties
Specifically, the British government have agreed to repeal all the legal duties in relation to the ‘all-island economy’ in section 10(1)(b) of the EU (Withdrawal) Act 2018. This section makes it obligatory that Ministers have due regard to the 2017 joint report from negotiators of the EU and the UK which spelt out in detail the obligations of both governments in upholding the principles of the GFA.
In the 2017 joint report the UK remained committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. In the absence of agreed solutions, it stated that: ‘the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement’ (para 49). It is this commitment which will now be unilaterally ditched.
Diverging economies
As a consequence of the proposed changes negotiated with the DUP, the British government expects the divergence between the economies of Northern Ireland and Ireland to widen over time. Yet, there is no analysis whatsoever as to whether this will be to NI’s economic benefit or how it will impact on both governments’ commitment in the GFA: ‘to partnership, equality and mutual respect of relationships within Northern Ireland between North and South and between these islands’.
To compound these erosions of the GFA, the current Secretary of State, Heaton-Harris, in answer to a question from Richard Drax, MP, erroneously informed Parliament: ‘it is very important to outline the parts of the Belfast/Good Friday Agreement that allow for all things to happen, and any change would absolutely depend on the consent of both communities (italics added) at the time’.1 The GFA makes it very clear that constitutional change will be determined by a ‘majority of people in Northern Ireland’, not a majority in each of the two main communities.
Scant regard for the Good Friday Agreement
This scant regard for the GFA provides yet another example of successive British governments preparedness to ignore international agreements and the rule of law. Despite an international agreement at Weston Park in 2001 to establish an inquiry into the murder of Belfast solicitor, Pat Finucane, it has still failed to do so. When introducing a bill to amend UK’s Brexit deal with the EU in 2020, Brandon Lewis, the then Secretary of State for Northern Ireland, admitted that it broke international law.
Even more recently, the legacy mechanisms agreed between the British and Irish governments and political parties in the Stormont House Agreement have been abandoned and replaced by a ban on further police investigations, inquests and civil actions for Trouble related events – the effective abolition of the rule of law for the period of the Troubles.
The changes negotiated with the DUP over the two years are wide ranging. They guarantee NI unfettered access to the UK’s internal market, free from checks except to tackle criminality, abuse of the scheme, smuggling and disease. Dynamic alignment with EU law is ended and the Stormont brake has been strengthened. At the same time, EU rules have been disapplied on a range of items and activities. In particular, NI will now be subject to the same VAT and alcohol duties as the rest of the UK.
The table above shows the extent to which NI’s access to the single market will now differ from jurisdictions which are members of or associated with the single market.
As can be seen, NI is completely out of the Common Agricultural Policy and Common Fisheries Policy, and out of a broad swathe of EU environmental and labour policies. UK standards will now apply across such areas as public health, genetic modification, drinks and food.
Post Brexit, many of the progressive EU policies will no longer apply to NI. For example, the Water Framework Directive which focuses on reducing and removing pollution, ensuring adequate supplies for human and wildlife needs and providing for river basin management across borders, no longer applies. Similarly, European policies targeting environmental sustainability such as the need to introduce smart meters to every household to allow them to monitor their energy usage has been dropped.
The Command Paper confidentially asserts that NI’s place in the UK internal market has been strengthened but at what cost? Have trade and economic considerations trumped food and animal safety? The need to protect NI, and indeed, the island of Ireland as a whole, from animal and plant disease has been recognised for a long time. In the past, Stormont has always made provision for inspection and examination of imported animals, plants and seed potatoes.
Although the UK has made written guarantees on biosecurity to the EU, including to protect against disease risks to the island of Ireland, many of the previous controls appear to have been curtailed along with a range of EU phytosanitary measures. Lax controls permitted Ash Dieback disease to be imported to Ireland. It will kill up to 80 per cent of ash trees on the island of Ireland and threaten many species that rely on the ash. Will the proposed risk-based or intelligence-led approach be sufficient to prevent the importation of similar devastating diseases to Ireland?
Trivergence and the Stormont Break
The strengthening of the Stormont Brake is far from straightforward. It potentially means that NI may now decide not to update EU law while GB does so, leading to ‘trivergence’ in the application of EU rules. It therefore has the potential to lead to uncertainty and deter investors when there is already now considerable confusion as to NI’s precise future status in the single market.
There is much else in the Command Paper which is contentious. It describes how under the old Protocol NI ‘risked being unable to benefit’ from the same VAT rates. But this only applies if UK rates are lower than in the EU. Since 2022, EU countries have been able to reduce VAT to zero for certain products and services that are consistent with EU environmental and health policies. The items included solar panels for households. In Northern Ireland the VAT for solar panels has remained at 5% over the period. Anyone installing solar panels in NI was, therefore, a few hundred pounds worse off than someone doing the same in the EU.
The paper confidently asserts on no less than three occasions that Northern Ireland’s place in the UK’s economic Union ‘remains the single most important factor in ensuring its prosperity’ and that ‘remaining within the Union provides the best future for Northern Ireland’. The latter, it claims, is not only one of conviction but is based on our assessment of objective facts’. But none are provided.
The objective facts do not support such a contention. Northern Ireland has long been a poor relation in the Union. In 2022, NI wages were the lowest in England, Scotland and Wales. Productivity in NI was 17% below the UK average. NI waiting lists are the longest on these islands. And there is now unanimous agreement among all the political parties, that NI has been consistently underfunded.
Remaining in the Union looks similarly bleak. A recent publication from Bloomberg Economics estimates that Brexit is costing the UK economy £100 billion a year in lost output. Tax revenues are down by £40 billion. There will therefore be a squeeze on public finances for years to come. In contrast, the economic future of Republic of Ireland looks considerably rosier. This year alone it has a budget surplus of several billion.
Prosperity, however, is much more than economics. It about living in a safe environment, free from pollution, animal and plant disease, having the ability to study and live in different countries without restrictions, having the protection of strong labour laws, respect for the rule of law and international agreements, and, most importantly of all, policies which attempt to guard against the existential threat of climate breakdown.
Any assessment of the objective facts, suggests that many of these features have been further eroded by Brexit and the secret negotiations between the government and the DUP. Only time will tell if these changes facilitate the breakup of the Union and a desire by people in NI to be once again part of the EU.