LONDON — Euroskeptic Conservatives will hold an 11th-hour meeting on Wednesday after failing to decide whether to back Rishi Sunak’s new Brexit deal.
After three weeks of deliberations, a ‘Star Chamber’ of lawyers convened by the European Research Group today gave a withering verdict on the Windsor Framework, arguing it will keep EU law supreme in Northern Ireland.
ERG chairman Mark Francois said a green lane for goods to avoid checks was “not really a green lane at all,” and that the Stormont Brake — meant to allow the Northern Ireland devolved assembly the power to challenge EU laws applying to Northern Ireland — is “practically useless.”
“The framework itself has no exit, other than through a highly complex legal process,” he added. Asked if the ERG had been “misled” about its contents, Francois said: “I am going to leave that to others to judge.”
But despite issuing a 52-page assessment, the ERG did not conclude today how it will direct its members in a key Commons vote on the framework — or whether it will direct them to vote as a bloc at all.
Instead a further meeting will be held on Wednesday morning, hours before the vote, once MPs have had time to digest the document.
Francois refused to say whether the ERG will direct its members to vote against the government.
One ERG member — who asked for anonymity — said when “meaningful votes” were held on Theresa May’s Brexit plans in 2018, the ERG gave a view but “individual members made up their own minds. That is probably what will happen this time.”
The member said it was “not too late” for the prime minister to return to Brussels to ask for amendments.
Rishi Sunak’s decision to hold a vote only on one legal element of the proposals, with 90 minutes’ debate, has unsettled some MPs.
But whatever the ERG’s verdict, Wednesday afternoon’s vote will pass thanks to Labour support.
The decision will be made on a statutory instrument encoding the ‘Stormont Brake’ element of the framework, which aims to give the currently-frozen Northern Ireland Assembly more say over EU laws under the post-Brexit set-up.
The Democratic Unionist Party has said it will vote against the plan. Its leader Jeffrey Donaldson said on Monday there “remain key areas of concern which require further clarification, re-working and change”.
But other potential critics, such as Liz Truss and Boris Johnson, have not come out in full-throated opposition, in a boost to the prime minister. The eventual size of any Tory rebellion remains shrouded in mystery. ERG members outside the meeting declined to give a firm figure of how many active members the group has.
Lawmakers on both sides of the English Channel have been poring over the Windsor Framework since it was agreed late February after months of talks between the U.K. and the EU.
The agreement is aimed at easing customs red-tape, equalizing some tax rules across the United Kingdom, and giving Northern Ireland’s lawmakers more of a say over EU rules enforced in the U.K. region through the new Stormont Brake.
But the ERG’s analysis seeks to take on a host of claims by Sunak’s administration.
The group published a flow chart arguing the Stormont Brake must in fact go through at least 10 steps before being applied. It said the mechanism is “of very narrow application in theory and likely to be useless in practice,” noting that a similar mechanism under the European Economic Area has only been invoked once in 2011 in Norway and was abandoned two years later.
The group said it had been “unable to verify” claims by the U.K. government that 1,700 pages of EU law will be “disapplied” or “removed,” or establish the nature of the claimed 3 percent of EU laws that will still apply to Northern Ireland. It argued the claim overall is “not true” because “not a single EU law is to be deleted” permanently from a long list of single market goods rules.
The Brexiteer group argued there will be only “limited and conditional easings” to EU law for traders in Northern Ireland, which “will not readily be available to smaller traders” and registration and declarations will still be required. It argued: “Precautionary usage of the ‘red lane’ involving full checks is likely.”
The scheme for retail goods will not apply to some mail-order supplies, it said, and it will be “difficult or impossible” to change the U.K.’s medicines approvals regime in future without putting availability of some drugs in Northern Ireland at risk.
There will be, the ERG went on, an “incredibly dangerous precedent” of the EU continuing to make regulations which only apply within Northern Ireland, “which could be turned against the U.K. in future.”
It added EU state aid law will continue to apply in Northern Ireland, with the Framework using a “less legally secure method” than Article 10 of the Protocol to limit it.
“Ameliorations” on VAT and excise rules “fall well short” of restoring the U.K.’s right to decide on its tax structures, it went on.
Sunak’s spokesperson on Tuesday argued that the Stormont Brake marks “a significant step change in what has previously been agreed” and deals with Northern Ireland’s “democratic deficit” under the existing set-up.
Asked if deal had been oversold by government, they added: “We’ve been as transparent as possible about the solutions the framework comes up with.”