Road to The Windsor Framework

Road to The Windsor Framework

Author: Irini Vasilakakos

Perils of the Northern Ireland Protocol and Implications of the Renegotiated Windsor Framework

Following months of intensive deliberations, the EU Commission & UK Government unveiled an agreement in late February on several joint solutions aimed at addressing the practical trade challenges for Northern Ireland (NI) businesses and citizens following the Brexit withdrawal. The newly minted Windsor Framework serves as a renegotiation, rather than replacement, of the original Northern Ireland Protocol (2020), as it seeks to rectify the impasses that stalled the protocol’s full implementation and improve its practical operability. The original protocol was agreed to as a post-Brexit measure to protect several core objectives of the 1998 Belfast Agreement, such as maintaining political stability in NI by avoiding a hard border with the Republic of Ireland, and preserving NI’s access to the EU single market. The Republic of Ireland/Northern Ireland border has held special status under the Belfast Agreement, existing largely without a physical barrier or any customs checks across its 270 crossing points; such an arrangement was made possible due to both countries’ EU single market and Customs Union membership, and Common Travel Area. The protocol originally specified that NI would formally sit outside the EU single market, however, EU Customs Union and free movement of goods rules would still apply; this essentially meant that goods originating from NI could be moved to the rest of the UK without restriction, but not vice versa, creating a de facto border at the Irish Sea.

Much protestation was leveled against the Northern Ireland Protocol’s measures, as detractors claimed that the EU had received an unfair trade advantage in the deal, that the concerns of NI businesses and citizens were left unaddressed, and that trade rules were too nebulous and in a state of legal uncertainty. Such disapprobation decidedly reached its apogee in February 2022, when Northern Ireland’s Democratic Unionist Party (DUP) pulled out of its power-sharing arrangement with Sinn Fein at the Stormont Assembly – a sine qua non of the Belfast Agreement – as a tactical maneuver to force the protocol’s renegotiation. Thus, The Windsor Framework was designed to address such concerns, including the key initiatives of minimizing EU-required checks on British goods arriving in NI ports, radically reducing customs bureaucracy, and keeping open the sensitive border between NI & Ireland with as little disruption as possible. Additional joint solutions involve new provisions on excise & VAT, agri-food and medicines, and customs efficiency, while upholding NI’s unique access to the EU’s single market. The new framework notably includes a Stormont Brake mechanism, which would allow the Belfast Assembly to object to new EU trade rules and laws deemed to negatively affect NI, and refer them to the UK Parliament for a veto. UK Prime Minister Sunak argues that this measure “safeguards sovereignty” for NI by providing the Assembly not only the right to be consulted on new EU single market rules, but also to block new – though not existing – rules from applying in NI. (In order for the brake to apply, however, power sharing at Stormont must first be restored).

A Closer Look at The Windsor Framework’s Core Components

The Windsor Framework can be broken down into three substantive areas of change regarding the Northern Ireland Protocol’s operability:

  1. The first set of changes concerns the regulatory checks required on the movement of goods into NI from Great Britain. Previously, under the Protocol, all goods moving across the Irish Sea would have required customs declarations and certificates (e.g. export-health certifications for all animal products). However, several grace periods have been in place preventing full implementation. Under the new framework:
  • Goods staying in NI for final sale will be exempt from most checks and requirements (in a “green lane”), while goods moving onwards to the Republic of Ireland and the rest of the EU will face the usual third-country checks (in a “red lane”)
  • To benefit from easier customs processes, businesses will have to register for the trusted trader scheme (tariff exemption program) and provide a description of goods moving to NI, but will avoid costly customs declarations
  • More sensitive goods, such as agri-food, will require some certification and physical checks can take place at sanitary and phytosanitary inspection facilities at NI ports and airports
  • Medicines will be subject to dual regulation by both UK and EU authorities
  • Pets can be moved between Great Britain and NI without an additional passport and personal parcels sent without extra paperwork
  • Essentially, these measures ensure that the same foods will be available in NI as in the rest of the UK
  1. The second set of changes addresses NI’s VAT and state-aid status. Though a less practical and more technical issue, this resonates politically due to the contentious nature of NI’s disparate treatment in contrast to the rest of the UK. Formerly, EU VAT and state-aid requirements applied to NI. Under the new framework:
  • EU VAT requirements for NI have been relaxed, aligning NI’s VAT status closer to the rest of the UK’s
  • EU state-aid rules will continue to apply to NI, however, the latitude of reliance on EU subsidy rules has been restricted under an agreed declaration between Brussels and London
  1. The third set of changes tackles the politically charged issue of how, and by whom, the protocol is governed, and the agreed rules enforced. Several changes have been agreed to concerning the role of NI’s institutions in overseeing the protocol, including
  • The Stormont Brake will be introduced, giving the Belfast Assembly an opportunity to vote on new EU laws that were previously applied automatically under the protocol. The brake must only be utilised in exceptional circumstances (unclear at present) and Members of the Legislative Assembly (MLAs) must demonstrate that the rule under protest will significantly impact everyday life in NI
  • 30 MLAs, drawing from at least two parties, can trigger the Stormont vote through a petition of concern. This will lead to a veto being raised by the UK government at the Joint Committee (UK-EU body responsible for managing the treaty), followed by a cross-community vote in the Assembly to approve/reject the new EU rule. (This process is subject to further consultation with the NI political parties)
infographic flowchart of stormont brake mechanism sourced from:
  • Ultimately, the UK government can use Stormont’s decision to adopt or refuse the new EU law at the Joint Committee
  • The EU retains the right to take the UK to arbitration and impose targeted remedial measures if, in their estimation, the mechanism of the Stormont Brake has been abused or utilised unjustifiably, or if the terms of its use have not been satisfied

Additionally, direct jurisdiction over EU laws applied under the Protocol will continue to reside with The European Court of Justice (ECJ), while NI’s courts will refer questions of EU law to the ECJ through the current preliminary preference procedure. This ensures that if the rights of NI’s companies and businesses are infringed, they are guaranteed the same processes and remedies as all others participating in similar litigation in EU courts.

Concessions, Obligations and Remaining Deficiencies of The Windsor Framework

Both the EU & UK have compromised from their original positions in negotiating The Windsor Framework. Eliciting the EU’s core interest in assuring the integrity and protection of its single market, Brussels has unequivocally made their greatest concession on the movement of goods into NI. The EU’s former position insisted on its rules-based approach and continued implementation of EU regulations in NI. Under the new framework, however, the EU has accepted regulations that are more risk-based and proportional, working under the theory that the final destination of goods determines the risk level; thus, goods remaining in NI can be treated differently to goods entering the single market. Subsequently, Brussels secured its stipulation that the ECJ maintain its final arbiter jurisdiction over EU rules applying to NI under the protocol. The EU has also ensured that robust safeguards are in place around these new arrangements to help foster trust in the UK’s ability to enforce delicate border arrangements that control the flow of goods into its single market. Such safeguards allow the European Commission to increase inspections should the UK fail to fulfill its obligations or abide by the agreements. Further obligations include real-time data sharing on the movement of goods, the building of new border-control posts for the “red-lane” goods at NI ports, and perhaps most saliently, the UK’s agreement to withdraw the Northern Ireland Protocol Bill; legislation that would have granted the UK parliament power to unilaterally re-write the protocol.

Prime Minister Sunak has asserted apropos of the new framework that only the bare minimum of EU law will apply to NI as necessary to avoid a hard border with Ireland, and to allow NI businesses ongoing and fair access to the EU market. Despite the agreement’s assurances and those of its negotiators, The Windsor Framework has failed to assuage its harshest critics, who continue to aver that fundamental problems remain unaddressed; citing, for example, post-Brexit checks at ports of entry rather than along the Northern Ireland-Republic of Ireland border, arguing that ‘sea border’ restrictions will benefit all-Ireland trade, hence EU trade. Additionally, critics suggest that the framework has left NI vulnerable to regulatory incompatibility and disjunction with the rest of the UK market in order to accommodate EU trade rules, and that it obliges NI firms to observe EU laws on goods transported solely within the UK. Indeed, the UK’s growing regulatory divergence from EU practices and standards presents a future challenge for the durability of the framework’s arrangements, and could create new barriers for trade between NI and the rest of Great Britain, as well as the EU. Thus, the status and proper role of EU law functioning alongside NI’s political structures is an issue unlikely to abate under this framework alone. Although the framework creates greater transparency as to how EU law will be applied in the region, it cannot account for every future contingency that may arise, thus leaving open the possibility of reigniting hostility toward the EU if the current arrangements do not adequately benefit NI.

The Windsor Framework has also failed to improve the ongoing Stormont blockade situation, pushing Northern Ireland into its second year without a functioning government, and imperiling the future of the Belfast Agreement in its totality. Following promulgation through the House of Commons on March 22 – the framework now formally being adopted by both the UK and the EU – DUP leader Sir Jeffrey Donaldson confirmed that the party will not rejoin power-sharing at Stormont, and informed the House of Commons in March that The Windsor Framework did not fully restore Northern Ireland’s place within the UK. In contrast, DUP counterpart Sinn Fein’s ultimate political goal remains Irish reunification – such an eventuality likely involving NI fully re-joining the EU –, thus they have welcomed The Windsor Framework and are not ideologically opposed to being subject to EU laws.

The ongoing disarray of Northern Ireland’s government notwithstanding, the framework provides little assurance that a future disagreement over EU laws will not cause a further breakdown in NI’s governance. Although the amended Stormont Brake rule aims to address such an eventuality, there is no guarantee that NI’s political parties will accept the outcome of its use, which could once again break the power-sharing agreement and halt government. Some have argued that the Stormont Brake contrivance is essentially useless as veto power ultimately resides with London, not Belfast. Thus, further recourse for NI’s political representatives in securing new concessions on the framework appears limited, as neither Brussels nor London have indicated any desire to reopen talks or renegotiate this agreement in perpetuity.

Wider political implications, contingent on the success of the new framework, exist for all parties involved, including future cooperation between the UK and EU on defence and foreign policy alignment, energy security, credibility with the US as future partners and in fulfilling the obligations of the Belfast Agreement, securing stability for investment into the region, etc. Any future success in addressing such issues may indeed rest on the efficacious cooperation in executing the new framework’s arrangements, as much has been agreed to under a good-faith understanding, however, with little practical experience in implementation. This raises the question of whether trust and co-operation between London and Brussels will be enough to sustain the agreement sans further fallout, in what has been an oft tense post-Brexit relationship between the two governments.

The Windsor Framework: Path to Entente or a Precarious Future?

Evident as the difficulty in securing the multiple post-Brexit agreements may be, the impending pitfalls plaguing implementation of said agreements could lead to greater complications for all parties down the road, as numerous issues remain unresolved. Several leading questions surround the issue of Northern Ireland’s incongruous place amongst the UK, the Republic of Ireland and the EU. With few guarantees accompanying The Windsor Framework, lingering in the background is how the new rules will be executed while upholding the integrity of the Belfast Agreement, or whether such an accommodation is at all possible. Political volatility in NI remains an ever-present paradigm, and it is currently uncertain whether the post-Brexit arrangements will render the ideal of Irish reunification more implausible, or whether the practical complications of separation exposed by Brexit will inspire a new push for reunification. Such political volatility may be fueled by various complications, for example, potential divestment from the region due to insufficient transparency and legal distinctions for NI businesses operating simultaneously under EU and NI law. These concerns may also impact the original objectives of Brexit, and may lead the UK to inevitably keep its practical regulatory and trade rules close to the EU’s single market rules or risk a breakdown in cooperation over the current arrangements. This would also prove providential for the EU, which has faced accusations of prizing protectionism and adherence to its stringent single market regulations over its obligations as a guarantor of the Belfast Agreement. Additional concerns persist over the democratic and sovereign rights of Northern Ireland’s citizens, how much control they have over enforcement of rules and laws they are directly affected by, and how much input they may have in future negotiations over the newfound EU-UK shared governing apparatus. It remains to be seen whether EU and UK political leaders can deliver on their promises of mutually beneficial and pragmatic solutions to Brexit or if the region faces a more discordant future.

21 April 2023


Further Reading

21 April 2023


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Acknowledgement of Country

RMIT University acknowledges the people of the Woi wurrung and Boon wurrung language groups of the eastern Kulin Nation on whose unceded lands we conduct the business of the University. RMIT University respectfully acknowledges their Ancestors and Elders, past and present. RMIT also acknowledges the Traditional Custodians and their Ancestors of the lands and waters across Australia where we conduct our business - Artwork 'Luwaytini' by Mark Cleaver, Palawa.