David Frost: Under the Windsor Framework, the UK can't stop the inevitable divergence between Great Britain and Northern Ireland

(Click here to read ‘The reality is that UK law – not EU law – remains dominant in NI,’ December 15)

Wherever the discussions between the DUP and the UK government go in the next few weeks, it is crucial that unionism does not deceive itself about what the framework means.

The Windsor deal represents an entirely different approach to the one Boris Johnson and I took. Theresa May’s disastrous negotiations had left us with constitutional meltdown and a choice between never leaving the EU after all or trying to improve her deal. We chose the latter.

We made it a bit better as regards Northern Ireland. But we never liked it; it was a means to an end; we doubted it would work well; and we always thought it would need to change.

As soon as we were proved right, in 2021, we and our successors tried to reform it, but sadly wider political events overtook us.

Under the Windsor deal, in return for some token improvements in the arrangements – “improvements” which aren’t working well in real life – the British government has actively agreed to the EU’s world view for Northern Ireland, one based on alignment and EU law.

It has committed itself to advocating and defending it as a good and durable solution – and as a result cannot bring itself to speak entirely honestly about it any longer.

So its advocates must now claim it doesn’t really matter that so much EU law applies in Northern Ireland. Mr Crawford argues it only covers 18% of the economy, some EU law applies in Great Britain too, and British governments are not going to pass laws different to the EU anyway.

But it’s not really like that. That 18% of the economy includes the Irish Sea customs barriers, all the industry, and every actual product. State aid restrictions on tax and VAT rules go wider still. And UK courts have already ruled that in Northern Ireland the EU’s far-reaching Charter of Fundamental Rights still applies.

That’s partly why the government’s Rwanda scheme won’t work in Northern Ireland in the same way as in the rest of the country.

Yes, some limited EU law does apply in the rest of Great Britain. But it falls away over time, and it’s niche, mainly about EU citizens’ rights; doesn’t change at EU whim; and isn’t enforced by the European Commission and the EU’s court as in Northern Ireland.

And if British governments have given up wanting to change goods regulations, that is a regrettable consequence of the Windsor Framework, not a reason to support it.

The government is frightened to diverge precisely because it must mitigate the effects of this poor agreement well out into the future. But even if we don’t change our rules, the EU will change theirs. Under this framework, divergence between Great Britain and Northern Ireland is inevitable, and there is nothing the British government can do about it.

In any case, whatever the legal debates, there is a real world too. In that real world goods sales from Great Britain fell by 2.4% last year while imports from Ireland grew by nearly 5% and from the wider EU by over 8%. If you think that the mix of goods in your supermarket has changed, you’re right – and this is why. Industrial production in Northern Ireland has fallen for the last year; in the UK as a whole it has gone up over 2%.

This really isn’t “the best of both worlds”. It’s trade diversion and the gradual reorientation of Northern Ireland’s economy to that of the Republic and of the EU.

I know, of course, that many people in Northern Ireland are happy with that in principle. But the reality is that it is creating a legal and practical mess that will be damaging to everyone.

Northern Ireland is part of the UK. It isn’t – or shouldn’t – be in some limbo zone. Being part of a country means being part of the same legal framework as the rest of that country. But Northern Ireland is being forced to live under an undemocratic, constantly shifting, and horribly dysfunctional hybrid, which will inevitably bring ever-growing complexity and cost.

The only thing that is stopping all this being enshrined for good is that Stormont is not back up and running. While that’s the case, no-one can say the framework is working.

That’s why the prime minister has to resort to more money and increasingly implausible pledges to try to put the pieces back together – this week, as he said, to legislate “to protect Northern Ireland’s integral place in the UK and the UK internal market”. But the Windsor Framework already says that Northern Ireland is an integral part of the UK and our internal market. That doesn’t stop it imposing laws that put it in the EU’s single market nevertheless. Unless the prime minister is planning to overrule the framework – which he obviously isn’t going to do – such UK laws remain just words.

In the long run the framework can’t last. But the longer it is in place, the more it will change realities, and the harder it will be to replace it with a proper arrangement, such as mutual enforcement, that genuinely strengthens Northern Ireland’s place in the UK.

Of course the DUP must reach its own assessment of the situation and make up its own mind about next steps. But it should do so with open eyes.

Once the assembly is up and running, everyone, apart from a few recalcitrant parts of the Tory Party and some independent peers, will prefer to look away. The framework will get locked in.

The British government will pretend everything is fine again. And everyone in Northern Ireland, unionist, nationalist, or neither, will have to live with the dysfunctionality, cost, and neglect that will come with it.

I think the United Kingdom should aim to do better than that.

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• David Frost, Lord Frost of Allenton, was Brexit Minister and chief negotiator with the EU under Boris Johnson’s government