Rishi Sunak and Ursula von der Leyen shake on it (Dan Kitwood/AFP/Getty)

February 28, 2023   4 mins

Could something positive have finally happened in Northern Ireland’s never-ending Brexit story? After years of diplomatic failure, yesterday a package of measures was unveiled by Rishi Sunak and Ursula von der Leyen which might actually resolve the border dilemma. The EU made at least one significant concession designed to address the concerns of Northern Ireland’s unionist leaders, and with it came the first real glimmer of hope that Britain’s withdrawal from the European Union might finally be heading towards some kind of settlement. And yet here’s the catch: the solution Britain and the EU have arrived at does not mean Brexit is done. It means both sides have agreed it never can be.

At the heart of the rather grandly-named Windsor Framework is a political compromise which reflects the unique reality of life in Northern Ireland. Under the terms of the deal, the UK government can block any new EU rules from applying in Northern Ireland should just a third of Stormont’s elected representatives sign a “petition of concern” against regulation they feel will create barriers between them and the rest of the UK. This is the Stormont Brake — effectively a “unionist veto”, a central demand of the DUP. All that is needed to reach the threshold is 30 MLAs from two parties — easily reachable for both unionist and nationalist blocs in the assembly. Should such a petition be triggered and that EU law be blocked, Brussels has also accepted that this will cause divergence with the Republic of Ireland which it will have to manage. This is the first time it has even entertained such a possibility.

Leaving aside other aspects of the deal — from red and green “lanes” to manage the sea border, to less onerous rules for businesses — the effect of the “Stormont Brake” alone is profound for two main reasons. First, it means the EU has accepted a core principle of the Good Friday Agreement: Northern Ireland is governed by what is known as “parallel consent” and not simply by majorities like elsewhere. In Northern Ireland, both traditions — unionist and nationalist — must give their consent for anything to change. Until yesterday, that was not the case when it came to the Protocol, which meant new EU laws could apply in Northern Ireland based solely on the continuing support of a simple majority of MLAs. After yesterday, however, new rules from the EU can — in theory — be blocked by minorities from either side, supported by the UK government, should certain conditions be met.

Second, even though the Stormont Brake is powerful in practice, it comes with significant costs, potentially creating the conditions for a land border on the island of Ireland. This means the EU and UK have accepted that Northern Ireland cannot be “fixed” in one fell swoop but must be permanently managed. From now on, every new law the EU passes which might apply in Northern Ireland risks sparking a political crisis. As such, the UK and EU have a shared interest to ensure this does not happen. To do so, they must constantly be on guard, working together to find solutions to upcoming issues, agreeing compromises or fixes, ways of managing the border or avoiding divergence where possible. Northern Ireland is both a source of permanent tension — and a kind of permanent forced friendship.

It is this, I think, which is the real consequence of yesterday’s diplomatic breakthrough. It is not so much some great victory for Sunak, the EU or the DUP — though all have been vindicated in their approaches — but an agreement which redresses some of the most egregious imbalances in the original protocol, forcing both the EU and UK to accept long term ownership of an ever-evolving problem. The old agreement tried to solve the issue, prioritising an open land border with the Republic of Ireland above all other considerations, including democratic consent. This changes that settlement. This deal, as one veteran Northern Irish analyst told me, comes closer than any so far to the kind of political “score draw” which is necessary for Northern Ireland to function. It gives the DUP a political victory of sorts, a tangible reward for its obstinate refusal to accept previous settlements. It does so, however, without unpicking the basic elements of the protocol which are supported by nationalists.

Still, as of last night the DUP was still a long way from giving their blessing to the deal. The simple fact remains that the initial crisis is not over, even if Sunak is able to sweep it through the House of Commons with relative ease. If the UK and EU haven’t learned the lesson already, it is worth repeating: British politics cannot simply impose its way out of a crisis in Northern Ireland; it can only do so with Northern Ireland’s consent.

The deal does not do what many of the DUP’s fiercest critics wanted by ripping up the fundamental tenets of the settlement reached between Boris Johnson and the EU in 2019. It does not get rid of the need for checks to be carried out at the sea border between Great Britain and Northern Ireland, nor for EU law to continue applying in Northern Ireland, interpreted by the European Court of Justice. It does not do any of these things. And yet, for the first time it does give unionist parties a mechanism to withdraw their consent from new EU laws applying in Northern Ireland: unionism has been given a tool to manage Northern Ireland’s place in the UK. It is far from an all-powerful tool. It can only be applied in certain circumstances — not for “trivial” reasons and only when there is something “significantly” different about a new rule. But still, a principle has been established.

For those officials in London and Dublin who tried in vain to persuade the EU to be similarly flexible years ago, the sight of Sunak and Von der Leyen announcing yesterday’s agreement in Windsor was bittersweet. “A shame that it took so long,” was one weary reply. Another said almost everything in the deal had been proposed multiple times over and rejected as unworkable. But now it has been accepted. And the Northern Irish question is here to stay, the grit in the oyster that can never be removed.

Tom McTague is UnHerd‘s Political Editor. He is the author of Betting The House: The Inside Story of the 2017 Election.