Katy Hayward / Nov 2023
Flag of the Northern Ireland Assembly. Photo: Shutterstock
The UK and EU’s objectives behind the Windsor Framework were both practical and political. Most straightforwardly, they wanted to make adjustments to the Protocol on Ireland/Northern Ireland that would make it workable for the long term and allow its long-extended grace periods to come to an end. In political terms, the UK and EU both intended the Windsor Framework to lead to the restoration of functioning devolved government in Northern Ireland. While the first phase of the trade dimensions of the Windsor Framework has rolled out smoothly so far, Northern Ireland remains in a democratic limbo.
The Democratic Unionist Party (DUP) have exercised a veto over the full operation of its Assembly and Executive since Spring 2022 in protest at the Protocol. Having oft-reiterated their ‘seven tests’ against which any deal would be assessed, the DUP’s immediate official response to the Windsor Framework was to reserve judgement. Within a month, the party voted against the deal in Westminster but not before establishing a consultative group to gather the views of the ‘broader unionist community’. This rapidly produced a paper at the end of March which has informed ongoing talks between the Government and the party. The Government has described the talks as in their ‘final phases’, but it is almost impossible to find anyone willing to predict a return of Stormont before Christmas – or indeed before the next General Election.
Why did the Windsor Framework fail on this front? What came before and after it is of critical important. In advance, the UK Government failed to prepare the ground. In fact, it arguably made the ground particularly resistant to the seeds of compromise by saying that it would only accept a UK-EU deal that achieved the same outcomes as the NI Protocol Bill. That led unionists to expect an end – to quote the Government - to ‘the untenable situation where people in Northern Ireland are treated differently to the rest of the United Kingdom, [to] protect the supremacy of our courts and our territorial integrity’.
Such promises were not only misleading but also counter-productive in terms of securing unionist confidence. Northern Ireland will always be treated differently to the rest of the UK as a consequence of the 1998 Agreement, and ECJ jurisdiction regarding the Protocol was always non-negotiable for the EU. Feeding unrealisable expectations around what could happen with the Protocol could only result in deeper disillusion and distrust. Worse, such rhetoric exacerbated unionist fears that the Protocol undermined Northern Ireland’s place in the UK. No amount of red-white-and-blue washing in the government’s presentation of the Windsor Framework could remove the concerns it itself had advanced for many months.
And, having committed to a negotiated outcome, the UK Government has found itself back in one-to-one negotiation with the DUP to attempt to address their concerns, even if those concerns don’t reflect the views of the majority of people in Northern Ireland. It is very unusual to have such single party-single government talks in Northern Ireland because the very nature of its post-1998 Agreement arrangements require the inclusion of multiple actors. The UK Government does not have the remit to unilaterally negotiate changes to the 1998 Agreement or the Protocol/Windsor Framework – that would need the engagement of the Irish Government and EU respectively. So what are they negotiating that could be adequate to bring the DUP back in without being substantial enough to alarm the two agreements’ co-guarantors?
As the UK Government hunts for the magic bullet, the enormity of the challenge grows. The DUP’s position may be infuriating many on both sides of the Irish Sea and English Channel, but it is popular among its supporters who overwhelmingly endorse its boycott of the institutions. They think that they have been let down as both unionists and ‘Leave’ voters by the UK Government and are determined to squeeze as much out of the Government as they can while it remains willing to negotiate – the Secretary of State saying he will, “will work day and hour to resolve these issues”.
The longer the UK Government negotiates over the Windsor Framework with the DUP, the more unionists must wonder whether the DUP has a point, and the more the majority in Northern Ireland doubt whether Northern Ireland devolution can ever ‘work’ again. The costs of making it exist without government are mounting up towards a price the UK can ill-afford to pay.