Sorry, but this does not restore British sovereignty

When you think about it, that Rishi Sunak and Ursula von der Leyen press conference yesterday was a strange, unsettling, even demeaning spectacle. They were launching the Windsor Framework, an agreement that makes some significant alterations to the Northern Ireland Protocol, which left Northern Ireland in the EU’s Single Market for goods even after Brexit. Behind the niceties, what we had here was the prime minister of a supposedly free nation expressing child-like glee that a foreign oligarchy had granted him permission to enact certain policies within his own borders.

Consider medicines. We’ve reached a ‘landmark settlement on medicines’, said Sunak. ‘From now on, drugs approved for use by the UK’s medicines regulator… will be automatically available in every pharmacy and hospital in Northern Ireland’, he said. Then he paused for effect. He was giving us time to take in his momentous achievement. You’d think he was announcing the landing of the first Brit on the Moon rather than Britain finally having the right to do that most basic of things, a thing done by every independent nation on Earth – decree which drugs should be available within our own territory.

The entire press conference had this vibe, this sense of a PM being creepily grateful for the restoration of his nation’s rudimentary liberties. We now control alcohol duty, said Sunak, meaning any cuts made to the price of a pint in Britain will ‘apply in Northern Ireland’, too. British-made trees, plants and seed potatoes will once again ‘be available in Northern Ireland’s garden centres’, he cooed. Food made to UK rules can now be ‘sent to and sold in Northern Ireland’, he continued. I genuinely believe that this odd press conference will have inadvertently opened some people’s eyes to just how insane the post-Brexit situation has been. ‘Wait, we couldn’t set the price of booze in our own country?’

Modern politicians obsess over optics. So let’s talk about the optics of our prime minister standing next to the rather imperious figure of Ursula von der Leyen, president of the European Commission, and effectively giving thanks to the Euro-oligarchy for approving Britain’s right to do what other sovereign nations do as a matter of course. It’s true that the devil of the new deal is in the detail, but the meaning of it, the proof that our sovereignty remains fettered and Brexit remains unfinished, was in that televised spectacle in Windsor yesterday.

No doubt the previous version of the Northern Ireland Protocol was controversial, especially for Northern Ireland’s Unionist community, because it kept Northern Ireland subject to EU rules, entailing the creation of a customs border down the Irish Sea and siphoning Northern Ireland off from the rest of the UK in various important ways. To some of us Brexiteers, it looked like a kind of soft annexation, a modern version of when colonial powers would divide and thus weaken the small nation that had had the temerity to boot them out.

So, does the framework resolve the protocol’s economic separation of Northern Ireland from the rest of the UK and restore our sovereignty over every inch of our territory, from Brixton to Birmingham to Belfast? No. Not a bit of it. It provides a technical fix to some of the more onerous customs barriers erected between GB and NI, but it does not resolve the fundamental questions raised by Brexit. Namely, who rules? Us or them? Are we sovereign or not?

Sunak and virtually all of the mainstream media are gushing over the framework’s big achievements. These include the creation of ‘green lanes’ and ‘red lanes’, meaning that goods moving from Britain to Northern Ireland and staying in Northern Ireland won’t be subjected to so many customs checks, but goods that might go on to the Republic of Ireland (an EU member state) will be. And the fact that UK health-and-safety standards for food and drink, rather than the EU’s, will now apply in Northern Ireland. And the agreement that the UK can set VAT rates on some (not all) goods in Northern Ireland. And, most notably, the creation of a so-called Stormont Brake, talked up by Sunak as a ‘veto’, which would allow the UK government, at the behest of at least 30 members of the Northern Ireland Assembly, to prevent the enactment of new EU legal provisions in Northern Ireland. It is this, said Sunak, that ‘safeguards sovereignty for the people of Northern Ireland’.

These measures, and others, will definitely make life easier for businesspeople and consumers in Northern Ireland. It would be churlish of Brexiteers to deny this. But a closer look at the detail of these measures swiftly confirms that they’re not as sovereignty-safeguarding as Sunak would have us believe. In many ways, the EU’s document about the Windsor Framework is more revealing than the UK’s. Not known for being coy, the EU cannot help but make clear that, even with this framework, it will retain a scary amount of authority over Northern Irish affairs. And, by extension, UK affairs.

Consider the ‘green lanes’. These will definitely reduce paperwork for British businesses exporting to Northern Ireland. But they’re far from a stab for national freedom. The EU makes clear that goods moving from GB to NI will benefit from a ‘reduction’ in customs requirements, but ‘not a full eradication’ (my emphasis). That sounds like a reprimand to Sunak’s PR elation about ‘sovereignty’.

Even the booze thing is not as exciting as Sunak claimed. Yes, UK officialdom can tax alcoholic beverages in Northern Ireland according to their strength, says Brussels, but it ‘will not be able to apply any duty rate below the EU minima’. Will not be able to – excuse me? Who says? The EC? So much for sovereignty.

As for the UK’s right to devise state-aid rules in Northern Ireland, the EU makes clear that the new framework ‘neither modifies… nor restricts’ the imposition of EU state-aid rules in NI. Any state subsidy that has ‘an effect on trade between Northern Ireland and the EU’ – that is, between Northern Ireland and the Republic of Ireland – will be subject to EU rules. A national government being restricted by an external power from subsidising certain industries in certain circumstances? That’s not freedom.

What about the Stormont Brake, which has been celebrated by Tory Brexiteers as a wonderful ‘veto’ that will allow the UK to say ‘No’ to the EU? Here, too, the reality is murkier than the spin. The EU makes clear that it is not an easy or complete veto that can be exercised whenever Northern Irish politicians desire. No, it’s an ‘emergency mechanism’ that will allow the UK to prevent the enactment of new EU laws in Northern Ireland ‘in the most exceptional circumstances, as a last resort’. What’s more, the brake can be used for ‘amendments to or replacements of a subset of [EU] acts… not to all acts’ (my emphasis). So, in incredibly narrow situations, the UK can seek to prevent the imposition of EU laws in Northern Ireland, but some laws will be imposed anyway, regardless of what we think.

All of this raises a huge question – why are any EU-devised laws, the laws of a foreign power, being imposed in a part of the United Kingdom, when the United Kingdom voted to leave the EU? That’s the rub. Northern Ireland will still be treated differently to the rest of the UK. It will still be subject to EU oversight in a way that grates against every principle of sovereignty and democracy. Sunak made this clear at the press conference. ‘The only EU law that applies to Northern Ireland under the Framework is the minimum necessary to avoid a hard border with Ireland’, he said. Imagine a tweak to that wording. Imagine if our PM said, ‘The only French law that applies to Bristol…’ or ‘The only American law that Edinburgh has to abide by…’. We’d be shocked, no? And so we should be shocked that Northern Ireland, a part of the UK, will be governed by foreign laws, if fewer than previously. The EU even makes it clear that it will have the right to discuss with Westminster any ‘future UK legislation regarding goods’ that might impact on arrangements in Northern Ireland.

Then there’s the European Court of Justice, and the question of whether it will still enjoy some jurisdiction in Northern Ireland. It will. Both Ursula von der Leyen and the EU document on the Windsor Framework baldly state that the ECJ ‘remains the sole and ultimate arbiter of EU law’. This is because there are areas of trade and life in NI where the EU will still rule, and where the EU’s court might need to be brought to bear on controversies. A foreign court ruling in a sovereign nation? That’s not a sovereign nation.

It seems to me that the Windsor Framework, far from finally liberating NI and GB from EU oversight, streamlines and entrenches that foreign oversight. Northern Ireland will still be treated as a strange, separate entity. It will still be governed, in part, by EU law. It might still find itself dictated to by the ECJ. And the broader UK government will have to share info and future plans with the EU in a manner that no self-respecting sovereign nation would agree to. For those of us who believe that Brexit was all about sovereignty, the framework is as problematic and ridiculous as the protocol was.

Why is it being welcomed by so many people, then, from Downing Street to the newspaper of record to ERG types like Steve Baker? This is the part of the framework debate that worries me most. Some seem to love this deal precisely because it drains the passion, the populism, the politics from Brexit. Von der Leyen clearly sees in Sunak a politician she can do business with: managerial, technocratic, all about practicalities, not Boris. Writers for The Times cheer the ‘grown-up compromise’ of the framework. One says Sunak’s technocratic patience is a blow to the ‘Brexiteer irreconcilables’ who demand full sovereignty. Steve Baker, an ERG stalwart, says he is relieved that we have moved beyond the ‘awful populism’ of the past few years and now have a good, sedate deal. What? Awful populism? That’s me and you he’s talking about. The populace. The people who – reach for your smelling salts, Steve – believe in national sovereignty. Baker says his mental health has suffered as a result of Brexit, so he’s glad Sunak has struck this deal. I’m sorry if this sounds insensitive, but to elevate your own psychosocial health over the democratic rights of the masses is disgraceful. Steve, Rishi, even Jacob Rees-Mogg, listen – Brexit isn’t about you; it’s about us.

In this sense, we should be grateful for the Windsor Framework. It has confirmed that the great barrier to democratic sovereignty in modern Britain is not only the crazy, neoliberal, fundamentalist European Union, but also our own elites. Downing Street, the ERG, the liberal media, Labour, of course – all of them bristle at the idea of unfettered democracy. So let’s carry on fighting for unfettered democracy, for sovereignty, against the von der Leyens, the Sunaks and the Steve Bakers who imperiously claim that Britain and its inhabitants can never really be trusted with freedom.

Brendan O’Neill is spiked’s chief political writer and host of the spiked podcast, The Brendan O’Neill Show. Subscribe to the podcast here. And find Brendan on Instagram: @burntoakboy