The DUP has said it will vote against the first part of Northern Ireland’s new post-Brexit deal in the UK parliament this week because it provides no say on existing EU laws already in place.
Sir Jeffrey Donaldson, the DUP leader, said that the party’s officers unanimously agreed that it would vote on Wednesday against the “Stormont brake”, which allows a minority of Northern Ireland Assembly members to flag concerns about new EU laws applying in the North.
The brake is contained in the new EU-UK agreement known as the Windsor Framework, which was designed to reduce checks on goods moving from Britain into Northern Ireland and end the political stalemate over the Northern Ireland protocol, the North’s existing Brexit agreement.
The DUP is boycotting a new Assembly over its opposition to the protocol, a part of the wider Brexit deal agreed between the EU and UK that aims to avoid a hard border on the island of Ireland by moving customs checks on goods moving between Britain and Northern Ireland.
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The first House of Commons vote on the Windsor Framework will be taken on secondary legislation coming before Westminster this week that will implement the Stormont brake.
The vote on the statutory instrument is viewed as an opportunity for British MPs to have their say on the wider agreement on Northern Ireland reached by British prime minister Rishi Sunak and EU Commission president Ursula von der Leyen at the end of last month.
While rejecting the Stormont brake mechanism, Mr Donaldson kept the door open to the possibility of accepting further changes to the deal, saying in a statement that there was a “need to see further progress secured whilst continuing to seek clarification, change and reworking”.
The leader of Northern Ireland’s largest unionist party said the framework did not deal with some of “fundamental problems at the heart of our current difficulties”.
He said: “There remain key areas of concern which require further clarification, reworking and change as well as seeing further legal text.”
The DUP leader stopped short of rejecting the framework overall, but rejected a key part of the agreement designed to allay unionist concerns on the “democratic deficit” by giving unionist parties a veto to request an emergency block on new EU laws applying in Northern Ireland.
“It remains the case that the ‘brake’ is not designed for, and therefore cannot apply, to the EU law which is already in place and for which no consent has been given for its application,” he said. “Whilst representing real progress, the ‘brake’ does not deal with the fundamental issue, which is the imposition of EU law by the protocol.”
The DUP’s rejection of the brake diminishes the chances of the Windsor deal being agreed before the 25th anniversary of the Belfast Agreement, Northern Ireland’s landmark peace deal, which falls on April 10th and in advance of the planned visit of US president Joe Biden, former US president Bill Clinton and former US secretary of state Hillary Clinton to Belfast.
On Monday, the UK government released further detail on how the Stormont brake will work when it published the draft statutory instrument that MPs will be asked to vote on this week.
At least 30 MLAs from two or more parties, from either side of the community, can ask the UK government to suspend a new EU law once a “democratic scrutiny committee” of the assembly examines the law and consults with the UK government, ministers and Northern Ireland departments along with business and civil society groups on the new or amended EU laws.
The scrutiny committee can only seek the application of the brake once it has shown that the new EU law “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist.”
The UK government must legally trigger the brake and suspend the EU law being applied once it receives the notification. The EU and UK must then decide, in the joint committee set up under the EU-UK Brexit deal, whether the new law should or should not be applied in Northern Ireland.
The Northern Ireland secretary of state cannot consider the possibility of the EU taking “remedial measures” in their consideration on whether the requirements for the brake are met.
The British government cannot agree to the law being applied unless there is cross-community support for the law in an “applicability motion” to be put before the Assembly.
A UK minister can apply a new EU law in Northern Ireland if the minister considers there are “exceptional circumstances” that justify it in the absence of the applicability motion being passed or the new law would not create a new regulatory border between Britain and Northern Ireland.
Exceptional circumstances include those where there is no first minister or deputy first minister in office. A new regulatory border is deemed to be a situation where rules on goods movements would “materially divert trade” or “materially impair the free flow of goods”.
