{"id":292,"date":"2024-02-03T07:34:04","date_gmt":"2024-02-03T07:34:04","guid":{"rendered":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/?p=292"},"modified":"2024-02-02T16:56:18","modified_gmt":"2024-02-02T16:56:18","slug":"some-ado-about-not-much-the-dup-deal-on-power-sharing","status":"publish","type":"post","link":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/2024\/02\/03\/some-ado-about-not-much-the-dup-deal-on-power-sharing\/","title":{"rendered":"Some ado about not much: The DUP deal on power-sharing"},"content":{"rendered":"<p>The publication on Wednesday of a UK Command Paper &#8220;<a href=\"https:\/\/assets.publishing.service.gov.uk\/media\/65ba3b7bee7d490013984a59\/Command_Paper__1_.pdf\">Safeguarding the Union<\/a>&#8221; came largely out of the blue. For months the Secretary of State and budding author, Chris Heaton-Harris, has been talking with the Democratic Unionist Party (DUP) about returning to power-sharing in the Northern Ireland Executive.<\/p>\n<p>Last year&#8217;s <a href=\"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/2023\/03\/02\/starting-to-unpack-the-windsor-framework\/\">Windsor Framework<\/a> was supposed to have achieved this, although at the time it was evident that a lot more effort had gone into squaring circles with the Commission than any of the parties in Stormont.<\/p>\n<p>Any manner of carrots and sticks have been banished over the last 12 months, to no obvious effect, so hopes were not high at all about this current push.<\/p>\n<p>But a deal does indeed seem to have been done, with the institutions get back into <a href=\"https:\/\/www.bbc.co.uk\/news\/uk-northern-ireland-68174458\">operation<\/a>, some two years since they collapse.<\/p>\n<p>In this post, I want to explore the elements of that deal as they relate to the Northern Ireland Protocol. This was nominally the major issue for the DUP, so we&#8217;d expect things to have moved clearly.<\/p>\n<p>However, my top line is that this deal doesn&#8217;t really make any major change to what was agreed in Windsor, so any argument that London moved mountains here is not really in accordance with facts on the ground.<\/p>\n<p><!--more--><\/p>\n<p>The Command Paper is a hefty tome, filled with many pages of reminders of what&#8217;s what and lofty promises of what will be. Take those bits out and you&#8217;re left with, well, not much.<\/p>\n<p>It sets out 24 (count &#8217;em!) &#8216;measures the Government is committed to&#8217;, which feels like a relic from the &#8216;<a href=\"https:\/\/www.imdb.com\/title\/tt0163470\/\">never mind the length, feel the width<\/a>&#8216; school of marketing.<\/p>\n<p>As much as is possible, those measures break down into:<\/p>\n<ul>\n<li>6 items of legislation (rolled into two instruments <a href=\"https:\/\/www.gov.uk\/government\/publications\/safeguarding-the-union\">here<\/a>)<\/li>\n<li>5 new institutional arrangements<\/li>\n<li>5 commitments\/promises on things (not) to do<\/li>\n<li>4 ongoing pieces of work<\/li>\n<li>2 procedural changes<\/li>\n<li>1 clarification<\/li>\n<li>1 relabelling (of the green lane)<\/li>\n<\/ul>\n<p>You&#8217;ll notice that this is all UK internal work, rather than anything that immediately requires EU agreement, rather going against any idea of changing the Protocol or Windsor.<\/p>\n<p>Indeed the only directly EU-involving piece of this puzzle was a <a href=\"https:\/\/assets.publishing.service.gov.uk\/media\/65b908614ec51d000dc9f184\/Draft_decision_of_the_Withdrawal_Agreement_Joint_Committee_amending_Joint_Committee_Decision_No_12023.pdf\">draft Decision<\/a> of the Withdrawal Agreement&#8217;s Joint Committee, which arrived on the Tuesday afternoon and which allows of goods on &#8216;sale to or use by an end consumer&#8217; in GB to be treated as &#8216;non-commercial processing&#8217; (as defined by Decision 1\/2023), which in turn makes it non-risk under <a href=\"https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/HTML\/?uri=CELEX:12019W\/TXT(02)#d1e176-92-1\">Art.5<\/a> of the Protocol.<\/p>\n<p>This eases checks on more goods, including agri-foods crossing into Northern Ireland.<\/p>\n<p>Which is nice, not least because it lets the Command Paper include this reassuring graphic (as long as you glide over &#8216;qualifying&#8217;):<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/pbs.twimg.com\/media\/GFLSXekaEAACJBT?format=jpg&amp;name=small\" alt=\"Image\" \/><\/p>\n<p>This is not a major change, in the round. Interacting with various contacts in Northern Ireland, it&#8217;s clear these changes still leave significant volumes of at-risk good movements, even as compliance and monitoring still has big holes in it, making problems down the line very likely.<\/p>\n<p>Even the legislative changes aren&#8217;t as grand as they first appear.<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/pbs.twimg.com\/media\/GFLU0r9bwAAws3v?format=png&amp;name=small\" alt=\"Image\" \/><\/p>\n<p>To argue that you&#8217;ve put a problem to rest through legislation that amends other legislation only really points up that you can amended the amended legislation down the line, should London feel so inclined. And for a DUP that&#8217;s been shown just how much a nominally sympathetic British government cares about changing course on this topic, that&#8217;s not a great look.<\/p>\n<p>Any way, the EU(W)A 2018 amendment bears some further inspection. Section 7A of that Act (below) provides a mechanism for dynamic adjustment to new EU rules under the Withdrawal Agreement (and Protocol). But note that the proposed change simply refers back to Windsor, notably the Stormont Brake.<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/pbs.twimg.com\/media\/GFLVa1zaAAA_FdN?format=png&amp;name=small\" alt=\"Image\" \/><\/p>\n<p>As we <a href=\"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/2023\/03\/09\/the-stormont-brake\/\">discussed<\/a> at the time, the issue with the Brake isn&#8217;t the hand-over from Stormont to London of a request (which is what this amendment will tighten), but the performance of the numerous steps that Stormont has to do in order to get there in the first place.<\/p>\n<p>Stormont will be buried in the accumulated pile of stuff that&#8217;s built up over the last two years, plus the on-going &#8216;normal&#8217; workload, so whether it ever had enough capacity for proper engagement, planning, scrutiny and action to operationalise the Brake is open to debate.<\/p>\n<p>The Command Paper does offer some London support in all this, but whether and how that works is still open.<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/pbs.twimg.com\/media\/GFLW5MraIAA5U3a?format=jpg&amp;name=small\" alt=\"Image\" \/><\/p>\n<p>And that&#8217;s most of what I can usefully add here.<\/p>\n<p>Heaton-Harris was very careful in his words in Wednesday&#8217;s Common&#8217;s statement: his words (below) are factually correct, but also a deflection from what both Tory and DUP MPs were asking, namely whether the UK had &#8216;full ability&#8217; (in Patel&#8217;s phrase) to not apply EU law.<\/p>\n<p>The UK still commits to apply EU law under the Protocol and while it can demure from applying new relevant rules, the EU is able to apply &#8216;appropriate remedial measures&#8217; under Protocol <a href=\"https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/HTML\/?uri=CELEX:12019W\/TXT(02)#d1e507-92-1\">Article 13<\/a>.<\/p>\n<p><img decoding=\"async\" src=\"https:\/\/pbs.twimg.com\/media\/GFLeslNaAAAI-w7?format=png&amp;name=small\" alt=\"Image\" \/><\/p>\n<p>For more analysis, I&#8217;ll point towards the excellent pieces by <a href=\"https:\/\/eulawanalysis.blogspot.com\/2024\/02\/saying-nothing-at-much-all-to-general.html?m=1\">Colin Murray<\/a>, <a href=\"https:\/\/x.com\/DavidHenigUK\/status\/1752663261474890039?s=20\">David Henig<\/a> and <a href=\"https:\/\/ukandeu.ac.uk\/the-northern-ireland-deal-offers-meaningful-change-if-westminster-keeps-its-word\/\">Joel Reland<\/a>. Suffice to say that the locus of this deal is the politics and the optics: if it works in getting back to an operational Executive in Belfast, then the legal side of it is marginal.<\/p>\n<p>Until it&#8217;s not.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The publication on Wednesday of a UK Command Paper &#8220;Safeguarding the Union&#8221; came largely out of the blue. For months the Secretary of State and budding author, Chris Heaton-Harris, has been talking with the Democratic Unionist Party (DUP) about returning &hellip; <a href=\"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/2024\/02\/03\/some-ado-about-not-much-the-dup-deal-on-power-sharing\/\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[2,68,11,57],"class_list":["post-292","post","type-post","status-publish","format-standard","hentry","category-uncategorised","tag-brexit","tag-dup","tag-northern-ireland","tag-windsor-framework"],"_links":{"self":[{"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/posts\/292","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/comments?post=292"}],"version-history":[{"count":1,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/posts\/292\/revisions"}],"predecessor-version":[{"id":293,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/posts\/292\/revisions\/293"}],"wp:attachment":[{"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/media?parent=292"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/categories?post=292"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.open.ac.uk\/blogs\/EUatOU\/index.php\/wp-json\/wp\/v2\/tags?post=292"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}