2007 - 2022

Arlene Foster Helps Both Ways

Arlene Foster may have inadvertently created the conditions for a ‘soft Brexit’. But she might also have created the conditions for her own downfall and given  Sinn Féin an opportunity to have their voice heard again.

If you had said to me a week ago that Arlene Foster and the Irish Government would put in place the framework for the UK’s soft Brexit, I’d have told you to feck off in no uncertain terms.  But here is where we find ourselves.

As per my last piece, I’m an Irishman trying to look at today’s deal from the viewpoint of the DUP.  Tommy Gorman, RTE’s Northern Irish Editor, referred to Ireland as the cockpit of Brexit after Westminster’s general election, and it looks like he has been proved right.

I am surprised that Foster backed down on Brexit.  But as Naomi O’Leary noted this morning, something stopped them from using the nuclear option. The clue to Foster’s reasoning might be found in paragraph 50 of the Joint EU and UK Negotiator’s report to the Council:

“In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”

Here, Foster and the DUP get their wish – no sundering of the Union to satisfy regulatory arrangements on the Border.  This is in line with what Davis said earlier this week and what Ruth Davidson posited as a possible solution.  But why would the DUP ask for that?  Nigel Dodds of Westminster has not been short of talk preferring no deal to a bad deal. Yet, as Mick Fealty of Slugger O’Toole writes, the “DUP are committed to Brexit, and one that will deepen British sovereignty in Northern Ireland. But Arlene Foster’s own home constituency is commercially sensitive to any barriers”.

During the last couple of days, various journalists have noted a possible breach between the Westminster DUP and the Assembly DUP.  And it looks like this may have come to pass.  It is worth noting that when Foster read out her statement this morning (as reported on RTE News and highlighted by my ma when I was chatting the situation over with her), she made no reference to the rest of the party.  There was an awful lot of ‘I’, but very little ‘we’.

Foster is shrewd, so perhaps she prioritised maintaining the Union over no deal and a hard Brexit.  But the manner in which she has done so keeps her in control.  Consider who Theresa May had to run the revised agreement past – it wasn’t the likes of hard Brexiteers Iain Duncan Smith and Jacob Reese-Mogg. Furthermore, any future trade arrangements regarding the Border are to be done in agreement with the Northern Irish Executive and the Assembly.  Effectively, Foster has faced down the Tory Brexiteers because if they challenge her preference, they have an election on their hands.  As a result, Arlene didn’t feel the need to go nuclear.

So far, so DUP.  But George Peretz QC noted two things about the agreement in paragraphs 43  and 47. Paragraph 43 notes that the UK was committed to avoid a hard border, and Paragraph 47 reminds us that the UK was committed to maintaining existing North-South frameworks and relationships (This will be in part because such relationships are part of Strand Two of the Good Friday Agreement. Peretz notes that the wording is explicit, and that the North-South arrangement ‘depends on “a common EU legal and policy framework”’.  Any trade discussions in Phase 2 of the Brexit negotiations have a very tight framework to work within, underpinned by EU law.  And whilst that might please Foster’s constituents, those in the DUP and Unionist community who wanted a hard Brexit won’t be so happy.  To quote Ciaran McGonagle (a Northern Irish lawyer based in London), “Examples of any comprehensive trade deal that is founded on principles of “regulatory alignment,” plz?”.

Now we get to the nub of the problem and where Foster may have undone herself.  The Irish Government will be pleased to see the inclusion of the Assembly and the Northern Irish Executive in Paragraph 50.   The commitment to existing North-South arrangements means they still have leverage and skin in the game during Phase 2 negotiations. And the explicit reference to the Assembly means they may be able to start leaning on the UK government if a regulatory trade deal looks to contravene those north-south arrangements.  Because ultimately, that deal has to be run by the Assembly.

Lest we forget, that’s the Assembly which currently doesn’t exist.  The Assembly that Foster and the DUP would be quite happy with if it continued not to exist.  Because as I noted in my previous piece, that Assembly has no unionist majority.  And a significant proportion of that Assembly want to ask Arlene Foster some tough questions over her hand in the Renewable Heating Incentive scheme.  But if you require approval from said Assembly, the UK and Irish Government will have to shake up the comatose power-sharing talks and get it back up and running.

To summarise then. Arlene Foster and the Irish Government have negotiated a soft-Brexit framework for the United Kingdom.  Arlene Foster and the Irish Government may also have agreed to force Theresa May to get the Northern Irish Assembly up and running, finally giving Sinn Féin an opportunity to have their voice heard again.

Like I said. The great thing about Arlene is she helps both ways.



Comments (7)

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  1. J Galt says:

    Isn’t this more or less mad?

    Something that was impossible on Monday is now possible on Friday.

    They’re all kidding themselves on.

    Surely it must fall apart.

  2. MBC says:

    Maybe she’s a true unionist. She believes in the same conditions applying to every part of the UK. A level playing field even. There’s a novelty.

  3. Willie says:

    The above analysis may we’ll be correct but nothing means anything in the absolute fiasco that is the Brexit process.

    Yes the complexity of NI and the DUP’s threat to bring down Prime Minister May’s teetering government may have brought about this potential outcome, but teetering May remains, and does anyone think that she or any of her government has any real negotiating power or long term stability.

    The Conservative party is at war, Europe is hostile, the Irish are pulling at May’s choke collar, and this deal has more gaps it’s its completeness than a bath luffa. It has all the potential to come undone, with absolutely no difficulty what so all.

    What is the deal on right to remain, the continuing but alleged reduced existence of the ECJ in UK affairs, will the UK be in or out of the single market and or the customs union, how will the seamless border in NI truly relate to seamless entry into mainland UK.

    And what of the £39 billion exit payment. That sure sounds like a huge austerity cut to me and I wonder how many NHS hospitals, doctors and nurses will need to be cut to pay for that.

    Or what of the farming industry that relies so heavily on EU subsidy or regional assistance that the EU distributes.

    Or what of parish urchins in the little regional assemblies of Hollywood or the now collapsed Stormont. Will they just run along now. Will Sinn Fein and the republican community simply accept the continuing primacy of Queen Arlene whose party represents a mere 28% of NI.

    No doubt FM Sturgeon and the wider Scottish coterie will meekly remain in their box too as the all powerful May decides what powers are to be repatriated to Westminster.

    And the trade deal still to come. Well since nothing is agreed until it’s all agreed, nothing is in fact agreed as this teetering Tory government stumbles on. No doubt May will tell em how it is to be, just like she’s told em to date.

    Time truly that the people were asked what they think and right glad am I that I live in the world’s Mother of Democracies.

    Meanwhile faltering economic growth, declining living standards, continuing austerity, and deepening disparity between the super rich and the rest is our continuing birthright.

  4. Jamsie says:

    Sorry but if you are not an Ulster Unionist any attempt at empathised perspective really only comes across as an opinion tainted by your inbuilt prejudice to their position.
    And you seem to be jumping ahead of yourself in terms of the framework for a soft Brexit particularly as the trade talks have yet to take place.
    The DUP remain in a very strong position and could just as easily as they changed position between Monday and Thursday do so again.
    Do not confuse my comments for support of their position I am merely stating facts.
    They have been made certain commitments and will ensure they are delivered on.
    No one can argue with that stance.
    The ROI got what it wanted to a certain extent in that the UK gave their position that provided the trade talks resulted in a satisfactory outcome there would be no hard border but the EU position is not yet clear and as this will rely on all 27 agreeing to a lien in Ireland on EU law this is still a problem for ROI.
    Why would other EU countries on the extremities be saddled with EU law when trading with neighbours who are not members of any of the trading agreements.
    The real problem for Westminster will be the what I consider to be the unlikely event that agreement cannot be reached in the trade talks.
    In this event the DUP position might be that a hard border is required and the UK government will be faced with the choice of agreeing or a general election.
    I suspect the fat lady has not yet sung!

    1. Jo says:

      “……if you are not an Ulster Unionist”………..”inbuilt prejudice”

      Wow! So we’ve all to just shut it then???


      1. Jamsie says:

        No on is suggesting that you “should all just shut it”.
        What I said was that the author, trying to write anything meaningful,l which in their opinion represents what the DUP’s position is, fails miserably and I think it is because the author is already prejudiced against their position.
        I suspect the prejudice is inbuilt because it seems to me that the author demonstrates an Irish Republican outlook in her views rather than those of the DUP.
        There is nothing sinister or accusing in my view, it is simply a statement which I had hoped identified especially in Ireland how difficult it is to try to represent someone’s views which are diametrically opposed to your own.
        My point remains that despite all the shouting about the ROI and the EU getting what it wanted that the DUP remain in pole position to scupper any deal.
        Even today we have the PM declaring there is no prospect of a Brexit payment to the EU if no trade deal is reached.
        The same goes for the border issue and I say again for those to do not comprehend the border will not be the result of the UK imposing it rather it will be because the EU demand it.
        Please do not feel you need to shut it.
        I am certainly not advocating this.

    2. Alasdair Macdonald says:


      “Why would other EU countries on the extremities be saddled with EU law when trading with neighbours who are not members of any of the trading agreements?”

      Are there any other countries on the “extremities”*, which have circumstances similar to those which exist on the island of Ireland?

      The residents on both sides of the border (which is currently a wholly open one) are entitled to Irish citizenship and there is a peace agreement which requires joint decision making by bodies o both sides of the border. Businesses have employees who live on either side of the border and cross back and forth to go to and from work. A number of these employees will be citizens of both countries and will be paying some form of taxation to both. I understand that some businesses have premises on both sides of the border and employees and suppliers move without let or hindrance between them.

      In a number of legal systems there are principles such as ‘use and wont’, ‘customary practice’ which are included within the law and are used by sheriffs and judges and others to help interpret the law.

      So, it seems to me that the situation on the island of Ireland is materially different from anywhere else on the ‘extremities’ of the EU for EU law to cope with this.

      (I can think only of Cyprus as somewhere within the EU which is divided. However, the situation is not comparable with that of Ireland in that Northern Cyprus has almost no international recognition, whereas with regard to Ireland, both sides of the border are bona fide states recognised by the UN and every other international body and organisation.)

      * Do not interpret my use of inverted commas as pejorative. It is simply to indicate that I am accepting your terminology for the sake of the argument

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