What is the DUP voting against in Northern Ireland’s Brexit deal?

The Democratic Unionist Party (DUP), Northern Ireland’s largest unionist party, was careful on Monday to throw out only a key part of the North’s new post-Brexit deal but not the whole deal.

While the party said that it would be voting against draft legislation on Wednesday implementing the “Stormont brake” – a mechanism designed to give Northern Ireland’s politicians a say in future EU rules applying in the North – it left room for further change.

This was not a full “no” to the Windsor Framework but something of a “half-no”. Still, at Westminster this week the first parliamentary vote on the deal – brokered by British prime minister Rishi Sunak and EU Commission president Ursula von der Leyen – against a central component of their agreement will be seen as a rejection of the wider deal.

The DUP’s position will encourage pro-Brexit Conservative hardliners in the European Research Group to vote against the government. The Labour Party has said that it will support the agreement so the Stormont brake will pass but the DUP’s rejection will be damaging for Sunak.

At the core of the DUP’s objection is its opposition to the fact that the Windsor Framework does not address part of the “democratic deficit” that it complained about in the Northern Ireland protocol, the original Brexit deal that avoided a hard border on the island of Ireland. The DUP said the Stormont brake was “not designed for, and therefore cannot apply to the EU law which is already in place and for which no consent has been given for its application”.

This is accurate. Last month’s Windsor deal creates a mechanism that allows 30 members of the Northern Ireland Assembly from the DUP and at least one other unionist party to ask the UK government to apply the emergency brake only on new and amended EU laws.

The UK government maintains that a “minimum of EU law” is required to ensure Northern Ireland can uniquely trade in both the EU single market and the UK internal market – something that the DUP is not happy about. This is to keep east-west border controls on goods moving from Britain to Northern Ireland and ensure no north-south customs or regulatory border on the island of Ireland.

When it comes to the laws applying now the UK government argues that unionists and other parties will have an opportunity to vote on the existing EU law in Northern Ireland when it is subject to a consent vote in the Assembly in 2024 under the original terms of the protocol.

While setting out its intention to vote against the brake the DUP did not slam the door shut. The party said that it would “continue to work” with the UK government on “outstanding issues” in the deal “to try to restore the delicate political balances within Northern Ireland and to seek to make further progress on all these matters”.

The publication of the UK’s statutory instrument giving effect to the brake confirmed that 30 unionist MLAs can seek to block an EU law but the UK government cannot veto the law if it has achieved cross-community support in an “applicability” vote of the Assembly along existing rules.

The UK government can unilaterally apply a new EU law under “exceptional circumstances” if the Assembly is in a state of collapse or if it does not create a new regulatory border.