10 minute read
The DUP’s Protocol gamble
Stormont leverage a gamble
Liz Truss MP, UK Brexit negotiator and her European counterpart Maroš Šefcovic.
The DUP’s attempts to muscle its way into negotiations between the UK and the EU could come at a large cost domestically, writes David Whelan.
Soon after taking up post as the new leader of the DUP, Jeffrey Donaldson MP met with Prime Minister Boris Johnson to voice his concerns around the Northern Ireland Protocol. The pledge by Johnson that negotiations to alter the post-Brexit trading arrangements would be short, sharp, and concluded within three weeks was the latest in a long line of unfulfilled assurances by the UK Government geared at appeasing unionists.
The DUP has constantly advocated for the triggering of Article 16 but to date, both former and current UK Brexit negotiators have sought only to threaten its use, much to the frustration of the Brexit-supporting party who will have to explain the existence of an Irish Sea border on the doorsteps in the coming weeks and months.
With three months to go until the scheduled 5 May election, coupled with legislation passing through Westminster that would prevent the immediate calling of an election and enable the Assembly and ministerial portfolios to continue in liminal form, the DUP has opted to roll the dice. With a meeting of the joint working committee between the UK and the EU scheduled for 21 February, a date earmarked as a possible deadline for any new deal to be agreed, the DUP hopes that the collapse of the Executive will cause sufficient noise for the UK Government to prioritise unionist concerns, and also offer the Government leverage in its negotiations with the EU.
However, in calling for the Protocol to be scrapped, and suggesting the party may not return to government until it is satisfied, the DUP leader Jeffrey Donaldson is taking a risk.
The Northern Ireland Protocol enabled Northern Ireland to remain aligned with the EU single market for goods to enable free movement of trade across the island, however, as Great Britain is no longer in the EU, checks on Great Britain goods take place at ports in Northern Ireland to make sure they comply with EU laws.
The EU published a range of proposals to help reduce checks on goods entering Northern Ireland from Great Britain but has constantly reiterated its unwillingness to remove the Protocol, part of a deal already agreed by Britain and one which is enshrined in international law.
In late January, the EU chief negotiator Maroš Šefčovič gave a bleak assessment of negotiation progress so far to a private meeting of European parliament members. Despite having met for talks with Liz Truss, Šefčovič expressed his surprise that the UK’s negotiator continued to demand changes which the EU had already ruled out.
For the DUP, influence and being seen to have influence by the electorate is key. It is perhaps no coincidence then that the resignation of First Minister Paul Givan MLA came just hours after officials in Northern Ireland appeared to ignore an order by Givan’s party colleague and Agriculture Minister Edwin Poots MLA to stop post-Brexit checks on agriculture and food goods at Northern Ireland’s ports.
The High Court has since issued an interim order to suspend the Minister’s decision until a judicial review can be heard in full, however, by then, it was clear that officials had already ignored the Minister’s order.
Prior to the current round of negotiations, the EU Commission had already said that failures of the current system for checks on agri-food at Northern Ireland's sea ports were undermining the credibility of guarantees of the UK Government to implement EU law.
In a draft report detailing findings of its audit, the EU Commission said that the system of controls in place for animals and agri-food products entering Northern Ireland is “not fit for purpose” and did not comply with EU rules.
The audit was based on examinations done in June 2021 and the EU assessed that inadequate resources were a determining factor in the failure to comply and raised concerns around infrastructure and the lack of a functional control system.
The Commission says that the UK Government “has failed” to ensure sufficient human and structural resources have been made available to the responsible competent authorities in Northern Ireland.
Recommendations included the introduction of proper facilities, ensuring access to a sufficient number of suitably qualified staff for authorities, better information sharing and better systems for checking pets and personal agri-food products. heavily influence the outcome of the UKEU negotiations. A deal that removes checks on goods from Great Britain to Northern Ireland would give the party a solid base on which to fight the forthcoming election.
However, the absence of such a deal will leave them empty-handed and vulnerable to an electorate already weary of Stormont’s fragility.
The removal of an Executive has many implications, most notably, on a proposed three-year budget. As Northern Ireland aims to recover from the pandemic, a three-year budget, prioritising healthcare, needed Executive approval by March. A single-year budget will not deliver the type of long-term investments needed to kickstart healthcare transformation and address the waiting list crisis.
Additional implications include the lifting of Covid-19 restrictions, which, up until now had been agreed by the Executive and the long-delayed official apology for survivors of institutional child abuse, which had been scheduled for March.
Public opinion will also be influenced by when an election takes place. Calls for an early election, including by Sinn Féin, would put greater pressure on a busy legislative programme in the Assembly, with 28 bills currently at risk if adequate time cannot be found for scrutiny and passage.
Protecting your rights after Brexit: One year on
Geraldine McGahey, Chief Commissioner of the Equality Commission for Northern Ireland.
Geraldine McGahey, Chief Commissioner of the Equality Commission for Northern Ireland, highlights the importance of the UK Government’s commitment in Article 2 of the Ireland/Northern Ireland Protocol to protect our equality and human rights post-Brexit, and outlines the work that the Commission, together with the Northern Ireland Human Rights Commission, has undertaken over the last year to ensure this commitment is upheld.
The UK Government made an important commitment in Article 2 of the Protocol to ensure that many of our equality and human rights in Northern Ireland will continue to be protected after Brexit.
Specifically, the Government committed to ensuring that protections regarding the rights, safeguards and equality of opportunity, set out in the relevant chapter of the Belfast (Good Friday) Agreement, are not reduced as a result of Brexit. This means that some of our key equality rights that are underpinned by EU anti-discrimination laws, including those on the grounds of gender, including transgender, sexual orientation, disability, age, racial or ethnic origin and religion and belief, cannot be reduced due to Brexit.
There are other EU laws which are also covered by this commitment, including those relating to: parental leave, the rights of victims and the rights of pregnant workers, as well as specific measures aimed at protecting the rights for disabled people. The UK Government has also committed to making sure that certain equality laws here will keep pace with any future changes to specific EU antidiscrimination laws. So, if the EU strengthens these laws, our equality laws must be similarly strengthened.
This is an important commitment, as there were concerns that equality and human rights may be reduced after the UK left the EU. It is also a recognition of the importance and centrality of rights and equality protections in the Belfast (Good Friday) Agreement and of the fact that this agreement has underpinned the peace process here.
Significantly, neither the Northern Ireland Assembly, nor the Northern Ireland Executive, can act in a way that is incompatible with the UK Government’s commitment. If they do, those actions can be challenged in our courts, by way of judicial review proceedings.
This commitment, therefore, has significant implications for the work of the Assembly, Executive Ministers and departments, including as they develop, consult on and introduce new legislation. They must ensure that this legislation complies with the UK Government’s commitment under the Protocol.
What is the role of the Commissions?
We have been given new powers and duties, to enable us and the Northern Ireland Human Rights Commission to oversee the implementation of its commitment. We have a responsibility to monitor, provide advice, report and ensure the UK Government’s commitment is upheld. We can use our powers together or separately.
The Commissions also work closely with the Irish Human Rights and Equality Commission on oversight of rights and equalities issues falling within the scope of the commitment that have an island of Ireland dimension.
Our powers include providing legal advice, assistance to individuals and, where appropriate, support for legal proceedings where we believe the UK Government’s commitment has been breached. We also have the power to bring legal challenges in our own name or intervene in legal cases.
What type of work have we taken forward?
A key focus of our work to date has been informing people of their rights after Brexit, through a range of means including public advertising.
We have also met with a wide range of stakeholders to hear about their concerns and to help us understand and assess the impact of Brexit on equality groups in Northern Ireland. We have raised their issues with relevant ministers and government officials and called for urgent action to address these concerns.
In addition, we have closely monitored draft legislation that has been progressing through the Assembly and Westminster to assess its compliance with the Government’s commitment. We have engaged with, and advised, relevant parliamentary committees on these issues.
We have also engaged with government officials to highlight the implications of the UK Government’s commitment on the work of government, including departments, and to encourage them to embed Article 2 considerations into policy and legislative proposals.
Issues we have raised include concerns from disabled people with assistance dogs about additional requirements and checks being introduced for travelling between Great Britain and Northern Ireland. We urgently require formal agreement between the UK Government and the EU to ensure there are no adverse impacts on assistance dog owners here.
We are also working with equality groups, including those from the disability and women’s sectors, over the potential impact of the loss of the EU funding. The European Social Fund is due to close in March 2023, with no clear replacement announced as yet, and any shortfall is likely to impact many sectors.
To assess the potential impact, we have commissioned research on the impact of the loss of EU funding on equality groups and we will use this evidence to report and make future recommendations to government. We are also working with faith-based communities experiencing difficulties accessing specific foods. Post-Brexit, the supply of some kosher and halal foods from Great Britain has been severely affected. Together with our Jewish and Muslim communities, we are calling for this to be addressed urgently.
Both Commissions are also working with the Irish Human Rights and Equality Commission on equality and human rights issues that have an all-Ireland dimension, including research on the potential divergence of rights across Ireland as a result of Brexit.
We are working with people living in border communities, as well as their representative organisations, regarding their concerns about the impact of Brexit on their daily lives. This includes cross border travel and access to cross border services such as healthcare, education and work.
We have been looking at issues such as the rights of minority ethnic people and migrant workers, and concerns about increased racial profiling in terms of cross-border travel.
Alyson Kilpatrick, Chief Commissioner, Northern Ireland Human Rights Commission and Geraldine McGahey, Chief Commissioner, Equality Commission for Northern Ireland.
What happens next?
continue to closely monitor the impact of Brexit on everyone here and specifically any impacts on equality groups. We will identify and highlight new issues and concerns that impact on people’s lives and use our powers, including our enforcement powers, strategically and robustly to hold the UK Government to account.
We have been tasked with a challenging and critical role and, in close partnership with the Northern Ireland Human Rights Commission, we will work to carry out that role and ensure that all of our equality and human rights are protected after Brexit.
Further information is available on the Commissions’ websites or by contacting:
ECNI: T: 028 9050 0600 E: DMU@equalityni.org W: www.equalityni.org/brexit
NIHRC: T: 028 9024 3987 E: info@nihrc.org W: www.nihrc.org/human-rights-afterbrexit
