Dan Boucher: As a former DUP director of policy and research, it is essential that the DUP completely disassociates itself from the assault on democracy that is Safeguarding the Union

Although there has been a tendency for criticism of the Northern Ireland Protocol/Windsor Framework to focus on the economically disruptive impact of the Irish Sea border, this is arguably not the primary difficulty.
The Safeguarding the Union paper was published by the government at the start of the year. The new deal does not bring substantive change in terms of democracy, writes Dan Boucher.The Safeguarding the Union paper was published by the government at the start of the year. The new deal does not bring substantive change in terms of democracy, writes Dan Boucher.
The Safeguarding the Union paper was published by the government at the start of the year. The new deal does not bring substantive change in terms of democracy, writes Dan Boucher.

There is an important sense in which the border injustice derives from a more basic injustice, the prior disenfranchisement of the people of NI not in relation to 300 hundred laws but 300 areas of law. We only have a border that needs ‘protecting’ because we first have a different legal regime in NI from the rest of the UK which results from the imposition of new EU laws on us.

The border is called into being for the purpose of protecting the ‘integrity’ of the result of our disenfranchisement, the different legal regime to which we are subject and the different market that it upholds.

Hide Ad
Hide Ad

In this context, it is interesting to note that when the Safeguarding the Union deal was presented - first to the DUP party executive and then the public at large - with the claim that ‘the green lane had gone’, the statements made in relation to the imposition of EU law were noticeably more restrained. Although the Safeguarding the Union process has resulted in the changes introduced by last year’s Windsor Framework Democratic Scrutiny Regulations being referenced in the EU Withdrawal Agreement Act 2018, this makes no practical difference to their operation.

There is thus no substantive change between the Windsor Framework and Safeguarding the Union deals when it comes to democracy, such that any assessment of Safeguarding the Union in terms of democracy must effectively be an assessment of the Windsor Framework.

Up until December 31, 2020 the integrity of the UK body politic rested partly on the fact that it did not matter where you lived in the UK: England, Wales, Scotland or Northern Ireland, our constitutional arrangements made it clear that everyone was of equal value because everyone was afforded the same right to stand for election to make all the laws to which they were subject. On January 1, 2021 the protocol destroyed this sacred trust, disenfranchising the 1.9 million people of NI in relation to some 300 areas of law.

Just over two years later, though, on February 27, 2023, the Prime Minister claimed that the Windsor Framework would resolve this difficulty through the Windsor Framework Democratic Scrutiny Regulations, but on publication it was clear they would do no such thing.

Hide Ad
Hide Ad

The Democratic Scrutiny Regulations confer a lesser right when dealing with new EU laws than that associated with the UK political tradition. Specifically, rather than giving the right to stand for election to make the laws to which we are subject, the regulations give the right to stand for election to try to stop laws that have already been made for us by the European Parliament. To the extent that we have been given a veto, we have been fobbed off with a negative right to try to block legislation already made for us rather than being respected, as was the case until 2021, with the provision of a positive, grown-up right to make our own legislation.

Safeguarding the Union/the Windsor Framework, however, simultaneously confronts us with an even more troubled prospect. In the first instance, not all imposed EU law is subject to the Democratic Scrutiny Regulations and in relation to these laws our citizenship is simply negated. In the second instance, it is potentially completely negated in relation to changes to existing EU law. A particularly concerning live example of the latter is currently provided by the EU proposed update of Regulation (EU) 2017/852 on mercury, with a view to banning the use of amalgam in dental fillings from January 1, 2025.

In its evidence to the Northern Ireland Assembly on March 14, the British Dental Association made clear that Northern Ireland is in no position to cease using amalgam in fillings on January 1, 2025, or indeed - as a result of a special derogation - on June 30, 2026. The truth is that NHS dental services are barely surviving at present because the monies given to NHS dentists for amalgam-based procedures are inadequate.

In this context the BDA submission made it difficult to see how NHS dental services could continue in Northern Ireland after January 1 if the only dental filling options are the significantly more expensive amalgam alternatives. As one dentist they cited said: "Increase in expenses and the ban on amalgam are the perfect storm. I don't know any dentist who will be able to deliver any NHS work next year under the circumstances. NHS dentistry is about to collapse."

Hide Ad
Hide Ad

The fundamental difficulty here is that even if the assembly pulls the Stormont Brake in an attempt to save the NHS in NI as it relates to dental services, there is no guarantee this will have the effect of vetoing the revised mercury legislation. Unbelievably, if the EU objects, the decision about the future of the NHS in NI would then be sent to an even more remote international arbitration body that might equally well side with the EU as with Northern Ireland! No self-respecting jurisdiction could accept such a humiliation.

Of course, it is always possible that by the time the mercury legislation has been concluded it is amended and made less problematic and/or that international arbitration finds in favour of NI rather than the EU. Neither eventuality, however, makes the underlying problem go away, that Safeguarding the Union cements in second class citizenship for the people of Northern Ireland in some contexts and the negation of our citizenship in others.

As a DUP member I do not believe that it is appropriate for the Democratic Unionist Party to associate itself with the assault on Northern Ireland democracy inherent in Safeguarding the Union a moment longer and would urge the party officers and executive to completely disassociate the party from it.

Dr Dan Boucher is a former DUP director of policy and research