Maksim Banev




 

Introduction

 

On the 27th of February Rishi Sunak announced jointly with European commission president Ursula von der Leyen a new legal agreement designed to amend certain provisions of the Northern Ireland Protocol. Entitled as the Windsor Framework, due to it being unveiled at the Windsor Guildhall, the agreement has, broadly speaking, received acclamations as a significant step toward finalising Brexit, warming relation between the UK and the EU and the restoration of the Stormont government. Substantive changes to the Protocol can be identified in three main areas: movement of goods, regulation and subsidies and European law and governance of the protocol. It is observed that different parties put an emphasis on different areas and aspects of the agreement. This article will examine the changes proposed to the Protocol as provided for by the governmental Command Paper, the process of implementation of the framework and responses to it by domestic and international actors. 

 

Movement of Goods and cross-border Trade

 

The UK government purports that the Windsor Framework will restore the smooth flow of trade within the union’s internal market.[1] The background to the story is that after Brexit the UK and the EU wanted to prevent a hard border on the island of Ireland. Hence, Northern Ireland had to be kept within the EU single market. To that effect the NI Protocol introduced a regime whereby goods arriving from Britain needed to be checked at ports and airports on arrival. This created the controversial ‘Irish Sea border’.[2]

 

The framework intends to rectify this position by introducing the so-called ‘green’ and ‘red’ lanes. The former entails that goods destined for final sale on the Northern Irish market will be exempt from most checks and requirements. Sunak stated in his speech that ‘burdensome customs bureaucracy will be scrapped’ through the operation of the green lane.[3] The latter involves goods moving to the Republic of Ireland and the rest of the EU which will face third-country checks. 

 

That functioning of this regime is to be ensured by labelling products in accordance with their final destination. EU officials say that this will allow for checks to reduce to around 5 percent of their current frequency by 2025.[4] To benefit from the easier customs process, business will need to register in a new internal market scheme. Through there, data will be collected and shared between the UK and EU on a bilateral basis.  

 

In regard to agri-foods, although certain certification requirements will remain[5], the regime will be significantly more lenient. According to the government the current Protocol entailed that for a lorry to transfer agricultural produce from Britain to Northern Ireland as many as 500 officially signed certificates costing up to £150 per certificate would have been required. Additionally, a set proportion of physical checks were mandated ranging from 15% for dairy to 100% for some fruit and vegetables. Other food stuffs like sausages and lamb joints would have been completely banned. If the Windsor Framework is implemented the government states that all agri-foods traders could join the internal market scheme which will remove almost all hurdles previously associated with the Protocol. It is stated in the Command Paper that more than 60 EU food and drink rules will be removed. Additionally, goods are to be produced according to UK and not EU standard. The purpose of this provision is to ensure regulatory homogeneity throughout the UK. Another point touched upon by the framework is the transfer of parcels which shall not be impeded in any material way as if they are being transferred, for instance, from Scotland to England. 

 

In summary, Northern Ireland is to be put in a position where they have almost unimpeded access to both the UK and EU markets. According to Sunak Ulster will be placed in an ‘unbelievably special position’[6]. Arguably this puts the EU single market in a precarious position. Things look grimmer when one comes to realise that the enforceability of the system is to be based on data-sharing and risk analysis. The purpose is to target those who may seek to abuse the arrangements. There will be no arbitrary physical checks. Interventions are to be based only on ‘intelligence and risk’. To what extent this slack regime grants the UK access to the single market in other ways remains to be seen. 

 

Safeguarding Northern Ireland’s Place in the UK

 

This part of the framework tries to address areas that are considered to be at the heart of the lives and livelihoods of the people of Northern Ireland. They are most importantly VAT, subsidies and health services.  

 

In terms of VAT, what the EU has granted are specific exemptions rather than blanked changes.[7] The UK can fully regulate the VAT of alcoholic beverages and certain goods such as heat pumps and solar panels. However, it is stated that the UK and EU will ‘explore establishing’ a list of goods which pose no risk of entering the single market that could be excluded from the EU VAT rules. 

 

In terms of state aid, the areas where the EU can decide on subsidies is narrowed down. However, in the EU Commission it is stated that according to Article 10(1) of the Protocol the EU can still make aid rules applicable to Northern Ireland.[8]

 

The effect on medicines and pharmaceutical product will be that their regulation and certification will be controlled by the UK’s Medicines and Healthcare products Regulatory Agency rather than the European Medicines Agency. In other words, medical products could be moved from Britain to Northern Ireland seamlessly without interruption. Indeed, it is extraordinary to consider that Northern Ireland will be able to trade pharmaceuticals within the EU single market and the UK market at the same time. As Ulster supplies most of its medicinal products from Britain the related provisions have been described as ‘a massive relief’.[9] However, some have expressed concern that the situation as concerning medical devices remains unresolved.[10]

 

Governance

The Command Paper on the framework states that over 1,700 pages of EU law will be disapplied in Northern Ireland and associated CJEU jurisdiction removed. However, the law that is being disapplied is the rules on trade introduced by the Johnson administration Brexit deal on checks on goods from Britain to Ulster.[11] Therefore, EU law will not be entirely, even substantially, removed from Northern Ireland. 

 

Of significant importance is a tool called the ‘Stormont Brake’. It is described by the government as a method of addressing the ‘democratic deficit’ in Northern Ireland. The brake is to be triggered by the Stormont government and implemented by the Whitehall. The effect of this tool is to veto the implementation of future EU law measures in Northern Ireland. The procedure for obtaining the brake entails the vote of at least 30 Members of the Legislative Assembly (MLAs) from at least two parties. After that the potential veto is to be presented unilaterally at the UK-EU Joint Committee by the UK government.[12] In practice, however, reliance on the Stormont brake will be extremely rare. It is made explicitly clear that the brake will not be available for trivial reasons. The standard is that there must be something significantly different about the scope or content of a new rule and MLAs will need to prove that there will be long-term ‘significant impact specific to everyday life’. If the EU considers that the break has been used unjustifiably or illegally the commission could bring the UK to arbitration and impose ‘remedial measures’. The reservation that needs to be exercised in relation to the Stormont brake is also exemplified by the Commission paper where it is stated that ‘the mechanism can only be triggered under the most exceptional circumstances’.[13]

 

Procedure for Enactment

 

As the agreement was reached subject to provisions of the Protocol for the amendment of its rules no formal ratification is required by the Westminster Parliament.[14] However, Rishi Sunak had made it clear that MPs will get to vote on it.[15]Therefore, the framework will go for a vote through both houses of parliament. On its side the EU also needs to ratify the agreement. It consists of multiple documents some of which will need to go through both the council and the European parliament which could take potentially several months.[16] It is important to keep in mind, however, that the consent of Stormont is essential for the success of the Windsor Framework. 

 

Responses

 

The framework has been received in varying ways. The MP for the Democratic Unionist Party Ian Paisley stated on the 1st of March that he did not believe that the framework met his party’s seven tests to endorse a new deal. He stated that it is ‘very clear’ that it does not satisfy the necessary criteria of the party. [17] The biggest issue on his account is the remaining role of EU law and the CJEU. Another DUP spokesperson, however, intimated that Ian had not spoken in his capacity as a member of the party which is a clear indication of multi-factionalism in the party.[18] Significantly, there are upcoming elections for the Stormont parliament on the 18th of May which means that the DUP must consider its cards very well in order to ensure electoral success. On the other hand, Michelle O’Neill expressed her enthusiasm for the proposal by stating that ‘access to both markets has to be grabbed with both hands.’[19]

 

Although by and large considered a big success, there are differing responses to the framework inside the conservative party itself. Boris Johnson stated that he would ‘find it very difficult to vote for something like this.’[20] Although he retains considerable influence with backbenchers labour has indicated support for the framework which means that its passing through the house is virtually assured. 

 

President Joe Biden made statements which indicate that the US perceives the framework in a positive way and are supporting its implementation.[21] Bill Keating, a lawmaker for Massachusetts stated that trade discussions could be opened now that the situation in Northern Ireland is about to be fixed. Indicative is the fact that on the 2nd of March a bill was introduced that would give the president the authority to negotiate a free trade agreement with the UK. Arguably, this is a perfect opportunity for Sunak to capitalise on his gains so far. The potential progress towards a US free trade agreement could also potentially play a role in the passing of the framework by parliament. Sunak stated that the government might press ahead with the deal even if the DUP rejects it.[22]

 

 

[1] The Windsor Framework: A new way forward, https://www.gov.uk/government/publications/the-windsor-framework, <accessed 3.03.2023>

[2]Windsor Framework: What are the main points of the new UK-EU deal? https://www.irishtimes.com/politics/2023/02/27/windsor-framework-what-are-the-main-points-of-the-new-uk-eu-deal/ <accessed 3.03.2023>

[3] United kingdom: PM speech on the windsor framework - february 2023. (2023, Mar 01). Asia News Monitor Retrieved from https://www.proquest.com/newspapers/united-kingdom-pm-speech-on-windsor-framework/docview/2780506252/se-2 <accessed 3.03.2023>

[4] Windsor Framework: What are the main points of the new UK-EU deal? https://www.irishtimes.com/politics/2023/02/27/windsor-framework-what-are-the-main-points-of-the-new-uk-eu-deal/ <accessed 3.03.2023>

[5] The Windsor Framework – What Has Been Agreed and What It Means for the Northern Ireland Protocol

https://institute.global/policy/windsor-framework-what-has-been-agreed-and-what-it-means-northern-ireland-protocol <accessed 3.03.2023>

[6] Rishi Sunak says Northern Ireland will be in 'unbelievably special position' to access both UK and EU markets,

https://news.sky.com/video/rishi-sunak-says-northern-ireland-will-be-in-unbelievably-special-position-to-access-both-uk-and-eu-markets-12822001<accessed 3.03.2023>

[7]Windsor Framework: What role will EU rules continue to play in Northern Ireland?,

 https://news.sky.com/story/windsor-framework-what-role-will-eu-rules-continue-to-play-in-northern-ireland-12822023 <accessed 3.03.2023>

[8] Ibid. 

[9] “Massive relief” as Northern Ireland’s health sector embraces Windsor framework, https://www.bmj.com/content/380/bmj.p501, <accessed 3.03.2023>

[10] Ibid. 

[11] Windsor Framework: What role will EU rules continue to play in Northern Ireland?,

 https://news.sky.com/story/windsor-framework-what-role-will-eu-rules-continue-to-play-in-northern-ireland-12822023 <accessed 3.03.2023>

[12] The Windsor Framework – What Has Been Agreed and What It Means for the Northern Ireland Protocol

https://institute.global/policy/windsor-framework-what-has-been-agreed-and-what-it-means-northern-ireland-protocol <accessed 3.03.2023>

[13]The Windsor Framework: a new way forward for the Protocol on Ireland/Northern Ireland,

 https://ec.europa.eu/commission/presscorner/detail/en/fs_23_1272 <accessed 3.03.2023>

[14]Rishi Sunak threatens to push through Brexit deal on Northern Ireland without DUP

 https://www.ft.com/content/3d2b4e24-5c92-4a28-b2fa-c4bfe143e814 <accessed 3.03.2023>

[15]Rishi Sunak promises MPs vote on ‘Windsor Framework’ Brexit deal,

 https://www.independent.co.uk/news/uk/politics/sunak-ni-brexit-deal-vote-parliament-b2290891.html <accessed 3.03.2023>

[16] Windsor Framework: What are the main points of the new UK-EU deal? https://www.irishtimes.com/politics/2023/02/27/windsor-framework-what-are-the-main-points-of-the-new-uk-eu-deal/ <accessed 3.03.2023>

[17]Stormont: We need government and we need it now - Sinn Féin,

 https://www.bbc.co.uk/news/uk-northern-ireland-64808694, <accessed 3.03.2023>

[18] Ibid. 

[19] Ibid. 

[20]Boris Johnson says he will find it hard to vote for Rishi Sunak's Brexit deal

, https://www.bbc.co.uk/news/uk-politics-64823710, <accessed 3.03.2023>

[21]Statement from President Joe Biden on the Windsor Framework,

 https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/27/statement-from-president-joe-biden-on-the-windsor-framework/,<accessed 3.03.2023>

[22]US calls for revived UK trade talks after Northern Ireland deal, 

 https://www.ft.com/content/362`f4d28-91dd-4aca-81bb-582287026f5c, <accessed 3.03.2023>