Like many others, I have spent the past number of days conscientiously and rigorously studying the detail of the Windsor Framework.
It would be churlish to fail to acknowledge the progress which has been achieved. I should say those improvements have only come about because of unionism exercising the leverage bestowed by the nature of power-sharing arrangements in Northern Ireland, and particularly the steadfast leadership of Sir Jeffrey Donaldson and Jim Allister KC.
In the absence of the campaign driven by the grassroots unionist/loyalist community, which drove the political leadership of unionism to take action, then we would not be this far forward in our shared objective of restoring Northern Ireland’s place in the Union.
We have come far, but have further yet to travel.
We all stood together, united by fundamental tests upon which we all agreed. On platforms, on parade and, for political unionism, on the campaign trail. The anti-Protocol campaign was united behind fundamental and unalterable principles, which was reflected politically in the Ulster Day declaration signed by the leaders of political unionism, and given further force by the DUP’s seven key tests. Taken collectively however, there is- in truth- but one fundamental test: the Acts of Union.
And so, whilst the Windsor Framework warranted intense and rigorous consideration, and it was right the time was taken to undertake that task, in truth the answer is strikingly clear. The Windsor Framework does not restore the Acts of Union; indeed, it may be said that it entrenches the subjugation.
Northern Ireland’s constitutional position remains diminished, and to pretend otherwise would be to mislead and deceive those who have put their trust in the anti-Protocol campaign.
That analysis could hardly be seriously disputed; but if more evidence were needed, it comes in the form of the clear and unambiguous opinion of John Larkin KC, Northern Ireland’s former Attorney General. He concludes, without any hesitation, that the Windsor Framework is incompatible with the Acts of Union.
It follows therefore that the Windsor Framework fails the first- and most fundamental- of the DUP’s seven key tests. It also fails, emphatically, the seventh test. And the Acts of Union was not merely the key issue for the DUP, but it was the sacred foundation upon which the entire anti-Protocol campaign rested.
Therefore, to endorse the deal would be to forsake the most fundamental constitutional issue which has formed the centre-piece of our shared opposition to the Protocol.
Sir Jeffrey Donaldson has united unionism, more than I ever had confidence that he would. I have been proven wrong in that regard. Jeffrey Donaldson has, thus far, kept his word. An enormous amount of credit must go to Sir Jeffrey- along, of course, with Jim Allister KC- for leading political unionism to this point. And there can be no doubt we have reached an important staging post as part of the process of extracting ourselves from the clutches of the pernicious Protocol and restoring Northern Ireland’s place in the Union.
However, to accept this deal would be to treat the Windsor Framework as a settlement rather than part of a process. The constitutional cost of that is immeasurable; it would entrench the subjugation of the Acts of Union, and accept- as a matter of principle- that Northern Ireland is a place part. A hybrid EU-UK zone, which is neither fully in the UK, nor fully in the EU.
The Windsor Framework leaves us, undeniably and expressly, subject to swathes of EU law. Laws we did not make, and laws we cannot change. It places us, albeit in only relatively specific areas, in a different regulatory regime than the rest of the United Kingdom. It is the continued application of EU law which is one of the most egregious breaches of the equal footing guarantee in Article VI of the Acts of Union.
In similar terms, traders must ‘opt-in’ to trade within GB-NI via a so-called green lane, which is more of an amber lane. Crucially, customs declarations are still required, and therefore it is not credible to suggest that there is no customs border in the Irish Sea for goods moving GB-NI and remaining within the UK. There is plainly such a border, and rather than remove it, the Windsor Framework entrenches it.
All of that is not to say that there has not been significant, and at one time unthinkable, progress achieved. We should pocket that progress, but make clear that we require a number of additions, and changes, which can- I believe- be accommodated within the broad parameters of the current structure.
This includes pressing the Prime Minister to make good on his commitment, both in the command paper and in Parliament, to legislate for constitutional safeguards, including the protection of the Acts of Union. This can, I believe, be achieved within the boundaries of the Windsor Framework, but it requires fundamental restructuring of the component parts of that agreement.
Moreover, a small- but game changing step- is whether the Windsor Framework can be restructured (albeit fundamentally) in order to deal with the continued application of EU law by completely removing it from having effect in Northern Ireland, and to restore equal footing between all constituent parts of the United Kingdom and thus additionally remove the requirement for traders to be ‘authorised’ as a trusted trader to move goods internally within our own country. The continued application of EU law is a deal breaker.
There are pathways to achieving those objectives. One such pathway was set out in the proposal provided to Downing Street on 22 February, whereby- in simple terms- the UK would operate an export certification scheme which would require, as a matter of UK law, exporters to comply with necessary EU standards as a condition of their export certificate. A breach of that requirement could be punished as a matter of UK law. In that proposal, EU law would ‘bite’ once the exporter entered the territory of the EU single market (the Republic of Ireland), and for any infringements of EU law within that territory, the jurisdiction of the ECJ could apply (but could not within UK territory as EU law would not itself be enforceable, other than as a UK law requirement of export certification).
The core concept of this proposal was to preserve single market access, and the entitlement to ‘opt in’ to follow EU law for those who wished to assume those obligations. There can be no sensible objection to a regulatory structure which permits those who wish to trade into the EU to assume, voluntarily, the relevant regulatory burdens of EU law which attach to trading in the single market.
However, that is significantly different that what is presently envisaged under the Windsor Framework, which is that EU law would continue to be imposed by default. There is, in my view, simply no way in which any self-respecting unionist can accept that constitutional infringement upon Northern Ireland’s equal citizenship and sovereignty entitlement as part of the United Kingdom.
If the ‘export certification’ proposal were to be taken forward, then as a knock-on effect it would remove the requirement for a GB-NI customs border applying at all. There would be no ‘green lane’, rather all traders would by default be subject to, and be taken to be in compliance with, UK law unless they had ‘opted-in’ as an EU exporter. There could, of course, be criminal penalties for anyone exporting without adhering to the requirement to obtain an export certificate.
There is also a pathway to restoring, and entrenching, the supremacy of the Acts of Union. The Government have committed to that course, but have not set out any legal text as to how they will do it. At (i) of the summary of the UK Government command paper, they commit to bringing forward amendments to the NI Act 1998 “to provide democratic and constitutional guarantees”. That legislation could be crucial, and pave the way for the necessary fundamental restructuring of the Windsor Framework, utilising commitments made within the text itself.
The Prime Minister is potentially a small – but yet fundamental- step away from being able to present an arrangement which could command the support of the unionist community. Even if what is presently on the table somehow convinces the DUP to perform intellectual somersaults and endorse the deal, this is not a recipe for political stability as there will inevitably be a significant portion of principled unionism who are, for reasons of constitutional conscience, unable to endorse the present arrangements. I am one such person.
Therefore, much better to take some small additional steps and improve upon the Windsor Framework, and to arrive at a sustainable settlement which can command the support- in good conscience- of unionists, nationalists and others.
I cannot, and will not, encourage anyone to endorse the present proposed new arrangements. They do not deliver upon our core constitutional objectives, and they are incompatible with Northern Ireland’s place as an integral part of the United Kingdom.
There is a small window to explore alternative opportunities. There is a big political prize for the Prime Minister: he can arrive at a deal which truly commands the support of all sections of the community in Northern Ireland, and respects all identities and traditions.
We have come too far to settle for an improved form of second-class citizenship within our own country. Let us remain united, and stay true to our shared commitments to one another.
In the words of Lord Trimble: “The Act of Union is the Union”. It is that which we must restore.