Despite the low likelihood of the DUP successfully impeding new EU single market regulations in Northern Ireland, the question arises as to why they attempted to do so in Stormont on Tuesday. First off, it had previously committed to do so. Sir Jeffrey Donaldson, the leader of the party, had pledged early this year that the Stormont brake would be tested within one month from the time devolution was reinstated. An aspect that the DUP has particularly prided itself on during their recent Stormont boycott is the adjustment of the brake, which resulted in a more definite legal framework from London regarding how unionists (and nationalists) can prevent the automatic implementation of EU laws.
Six weeks have since passed since Stormont was reinstated and a new EU regulation for the safeguarding of geographic markers for artisan and industrial goods has provided the first opportunity for a test. This regulation pertains to products such as Murano glass from Italy or Limoges porcelain from France. If the DUP had failed to take action, it would have meant missing Donaldson’s deadline and inviting fresh criticism from unionist adversaries.
Despite this, the party had never explicitly promised that this test run would impede an EU law, merely that it would prove “democratic scrutiny” and the capability to voice an opinion are given to Stormont. Brexit protocol unquestionably resulted in a democratic deficiency in Northern Ireland. As such, any demonstration that the Stormont brake, introduced through last year’s Windsor Framework agreement, can provide some tangible rectification should be warmly welcomed.
In the case that there is no cross-community support for the legislation in Stormont, the responsibility falls on Westminster to refrain from signing it into Northern Irish law, regardless of whether it is an amended or new EU legislation. This is unless “exceptional circumstances” are at play, or the legislation does not form a new regulatory boundary in the Irish Sea, in which case this duty can be overlooked by the British government.
The EU is justified in exacting a proportionate countermeasure should the British government not enact the legislation. Despite this, discussions focussed on a compromise between the UK and EU should take place. Even though Stormont holds no veto power over EU laws, it does possess the capacity to compel a sovereign government to breach an international treaty impacting the EU single market, under conditions the EU is willing to accept. This power is quite exceptional for a regional assembly from a third country, even in theory.
This capability may prove useful in practice too. The British government has put forward a memorandum suggesting that the new EU law will have a “limited” effect on the UK’s internal market. Interestingly, the factors it cites include the existence of a similar law in Britain and the fact that British firms tend not to deviate from EU standards.
A minister now has the obligation to justify to Parliament the application of the brake due to the impact it may have. The convincing argument they put forward may help assuage unionist fears. If they are unable to justify all anticipated effects, it will reveal the UK’s level of comfort in foregoing parts of EU law and how Brussels views it as proportionate. It could be inconsequential enough for everyone to accept.
There seems to have been a concerted effort regarding the brake testing, and efforts may arise to provide the DUP with some form of concession this time around, or to at least save it from embarrassment.
However, the test isn’t isolated within a unionist context. The SDLP has indicated that the new EU law could be beneficial for craft industries in Northern Ireland like linen and pottery. Sinn Féin, the SDLP and the Alliance worry that the DUP may oppose all new EU laws on a unionist basis, causing potentially harmful instability for businesses.
Optimally, the executive would have an economical plan to evaluate each new EU law, making unbiased decisions about potential gains, losses or improvements for Northern Ireland.
Practically, the DUP’s primary focus currently is the sea border. Nationalists have shown such strong support for the EU that they default to backing EU laws. On Tuesday, votes were divided along tribal lines, where all unionists supported the brake and everyone else was against, showcasing a lack of serious engagement in understanding the proposed law.
A risk for the DUP is that even if they succeed as per their definition, the unionist electorate may remain indifferent. Donaldson advocated restoring Stormont due to the urgency of addressing escalating governance issues that threaten the union. If the public is battling inadequate services, they might regard the DUP’s insistence on rules governing Italian glassware as ridiculous, even if they are outraged about the sea border. Repetitive showdowns are unlikely to be welcomed.
Supporting a prospective Labour government in aligning the UK more closely with the EU appears to be the only viable approach to mitigate the sea border effect.
Amid all this, monitoring of Brexit at Stormont is overseen through intricate agreements agreed by a waning Conservative government as a strange period of British politics winds down.
The DUP’s most advantageous move might be to announce the successful testing of the brake and that it can be applied again if required, before quickly changing their focus, as the world has already moved on.