Northern Ireland’s Brexit deal: Does it pass the DUP’s seven tests?

The Democratic Unionist Party (DUP) set out seven tests to be passed to decide whether it can accept any deal between the EU and UK that changes the Northern Ireland protocol.

DUP leader Jeffrey Donaldson has said that his party will take time to assess the new Windsor Framework and make a “collective decision” on whether to back it.

All eyes are on the North’s largest unionist party to see whether it will agree to the deal or continue the long unionist tradition of saying no to changes introduced for Northern Ireland.

So, what are the DUP’s seven tests and does the deal address them?

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1. Guarantees Article 6 of the Act of Union

The 202-year-old Act underpins the identity of Northern Ireland’s unionists, and the DUP wants the new deal to protect this guarantee that people in Northern Ireland have the “same privileges” and remain “on the same footing” as anyone else in the rest of the UK.

The framework ensures that the measures such as zero VAT rates on heat pumps and solar panels and excise duties on alcohol currently available in Britain will also apply in Northern Ireland, so this will address the “same footing” concern to a degree.

However, the role of the Court of Justice of the European Union as “sole and ultimate arbiter” of EU law applying in Northern Ireland will remain a concern for the DUP, despite the assertions in the deal that the EU and UK will look for other ways of resolving disputes before they go to the court.

2. Avoids any diversion of trade

The DUP has objected to how the protocol forced Northern Ireland’s businesses to source goods from the EU and banned certain products such as chilled sausages, plants and seed potatoes.

The new framework removes these bans and allows goods that are going to be consumed and remain in the North to pass through new green channels without checks on the Irish Sea.

3. Ensures no border in the Irish Sea

The removal of paperwork and checks on goods entering Northern Ireland from Britain have, according to Britain’s prime minister Rishi Sunak, “removed any sense of a border in the Irish Sea”, but some EU laws will apply “only where strictly necessary to provide privileged access to the whole of the EU market”. Sunak has sought to play this up by selling the arrangement as leaving Northern Ireland in an “unbelievably special position” of being able to access both the UK and EU markets, but the DUP will want to see the extent to which EU laws will apply.

4. Gives people in Northern Ireland a say in making the laws which govern them

Sunak has addressed the “democratic deficit” in the protocol with the Stormont Brake, a mechanism that allows any 30 MLAs to submit a petition of concern to block an EU law applying in Northern Ireland. The UK government must approve the veto and the EU and UK would still have to argue its merits in the joint committee overseeing the Brexit deal, but any dispute would be decided at international arbitration, not at the ECJ.

5. Results in no checks on goods going from NI to GB or GB to NI (and remaining in NI)

The Windsor deal removes checks, with the new green lane and a trusted trader scheme along with the requirement for export declarations on goods going from Northern Ireland to Britain. While some traders may still face checks on imported goods that may remain in Northern Ireland, these measures should go some way to appeasing the DUP’s concerns on checks.

6. Ensures no new regulatory borders develop between NI and the rest of the UK

This will require a level of crystal ball-gazing as Brexit is all about divergence and the more the UK diverges from the EU, the greater the risk that new regulatory borders will emerge between Northern Ireland and the rest of the UK. The Stormont Brake at least creates a mechanism to allow MLAs to block new EU laws that would have a big impact on the North.

7. Preserves ‘letter and spirit’ of North’s position in the UK as set out in the Belfast Agreement

This requires majority consent among the people of Northern Ireland for any reduction to its status as an equal part of the UK and will ultimately be a political call for the DUP.