Seeking effective operation of the Northern Ireland Protocol: The Windsor Framework

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On 27 February 2023, UK Prime Minister Rt Hon Rishi Sunak MP and the European Commission President Ursula von der Leyen announced that agreement had been reached on changes to the operation of the Protocol on Ireland/Northern Ireland.  This agreement is called the ‘Windsor Framework’. This blog provides a brief overview of events leading up to this announcement, summarises key elements of the new Framework and examines what this means for Scotland.

As usual for our longer blog articles, we’ve added a contents popout below.

The Protocol

The Protocol on Ireland/Northern Ireland (”the Protocol”) forms part of the EU-UK Withdrawal Agreement. It was agreed to ensure that there is not a hard trade border on the island of Ireland (i.e. between Northern Ireland and the Republic of Ireland) following the UK’s exit from the European Union.  The Protocol seeks to achieve this by requiring that all goods coming into Northern Ireland from Great Britain comply with EU regulations.  Compliance would be ensured by operating checks and customs controls at the Great Britain-Northern Ireland border.

The Protocol has been in effect since 1 January 2021 but has not yet been fully implemented.  This is largely because it would result in a trade border being introduced between Great Britain and Northern Ireland, which was opposed by some unionists in Northern Ireland and some Members of the UK Parliament.

The UK Government and EU Commission have both made proposals in relation to the operation of the Protocol over the last two years. These are summarised in a SPICe blog on how disagreement over the Protocol has affected EU-UK relations.

One approach adopted by the UK Government was to introduce the Northern Ireland Protocol Bill on 13 June 2022. The Bill (currently at Report Stage in the House of Lords) would, if enacted, disapply parts of the Protocol and provide UK Ministers with powers to make further changes to it. Read our SPICe blog on the Northern Ireland Protocol Bill to find out more. In response to the Bill being introduced, the European Commission announced it was proceeding with legal action against the UK.

After Rishi Sunak became Prime Minister in October 2022, negotiations between the UK Government and the European Commission increased in intensity.  This led to the announcement of the ‘Windsor Framework’ on 27 February 2023.

Part of the new Windsor Framework is a political declaration published by both parties which confirms that the UK Government will not be proceeding with the Northern Ireland Protocol Bill and that the European Commission will halt its legal proceedings relating to the Protocol against the UK.

The Windsor Framework

The UK Government has published:

The European Commission has also published a large number of documents on the agreement.

The UK Government command paper states that the Framework:

“Fundamentally amends the text and provisions of the original Protocol to uphold Northern Ireland’s integral place in the United Kingdom, address the democratic deficit and set out a new way forward.”

Colleagues in the House of Commons Library have published a briefing on the Windsor Framework, and the Institute for Government has published a detailed summary.

Trade between Great Britain and Northern Ireland

Under the Protocol, all goods travelling from Great Britain to Northern Ireland should currently be subject to significant checks and controls. The Windsor Framework means goods travelling from Great Britain to Northern Ireland will be treated differently, depending on whether they will travel on to Ireland/the European Union (red lane), or stay in Northern Ireland (green lane).

Goods in the green lane will be subject to reduced checks and controls. The UK Government and European Commission have published documents setting out changes for the transport of goods, including food products, through the green lane. To replace some of the physical checks, the agreement includes new data-sharing and labelling arrangements intended to provide transparency about the destination of goods.

The agreement proposes changes to address several practical problems that have arisen in connection with the operation of the Protocol, including:

  • Allowing certain plant products, such as seed potatoes, to be imported from Great Britain to Northern Ireland under a new certification system.
  • Making it easier for people to travel between Northern Ireland and Great Britain with pets.
  • Securing the supply of medication produced in Great Britain to Northern Ireland, including where it has not yet been approved by the EU.

However, it is important to note that goods which enter the red lane and onward travel to Ireland and the European Union will continue to be subject to full checks and require appropriate paperwork. 

The Stormont brake

Under the Protocol, a wide range of EU laws continue to apply in Northern Ireland. Because the UK is no longer part of the EU, there is no formal mechanism for Northern Ireland representatives that would enable them to take part in the EU policy-making process. The House of Lords Protocol on Ireland/Northern Ireland Sub-Committee has highlighted the:

“pervasive sense that the Protocol creates a democratic deficit, in that significant aspects of EU law with wide-ranging political and economic implications apply to Northern Ireland subject neither to UK Government participation in the EU institutions, nor to consent from parliamentarians either at Westminster or Stormont.”

The Windsor Framework introduces a new approach to address this deficit. Arrangements will be made to establish a new mechanism, the ‘Stormont brake’, that would give Members of the Northern Ireland Assembly a say in whether new EU rules or amendments apply in Northern Ireland, and which would give the UK Government the power to veto such laws from applying.

In the Prime Minister’s speech announcing the Windsor Framework he said:

“But the Stormont Brake […]  means that Stormont can in fact stop them [EU goods laws] from applying in Northern Ireland. This will establish a clear process through which the democratically elected Assembly can pull an emergency brake for changes to EU goods rules that would have significant, and lasting effects on everyday lives. If the brake is pulled, the UK government will have a veto.”

A declaration by the UK which is included in the Draft Decision of the Withdrawal Agreement Joint Committee on laying down arrangements relating to the Windsor Framework sets out the process under which such a veto can be exercised. To pull the Stormont brake, at least 30 Members from at least two political parties in the Northern Ireland Assembly must register their objection. However, they must also demonstrate that the proposed new rules would result in “a significant impact specific to everyday life”, “that the notification is only being made in the most exceptional circumstances and as a last resort”, and that they have exhausted other available consultation mechanisms.

The UK Government’s command paper states that:

“Whilst this democratic basis is entirely consistent with the Belfast (Good Friday) Agreement, the Government recognises that there is an unanswered question about how to provide a say to MLAs in a scenario in which a cross-community consensus has not been achieved. The consent mechanism is clear that our objective is to achieve as broad a consensus across all communities as is possible.”

If the brake is pulled, the UK Government can stop the application of the relevant rules in Northern Ireland but there is also a commitment to further intensive discussions with the European Commission. If there is a dispute about the use of the brake between the UK Government and European Commission, independent arbitration according to international, not EU law would be involved in resolving it.

The Stormont brake, alongside the other proposed changes set out in the Windsor Framework mean that there is an increasing chance of divergence between Northern Ireland and Ireland which potentially poses a risk to the EU Single Market.  According to the Command Paper:

“The Government recognises that these changes do create a different legal and practical context on the island of Ireland, with substantial and likely increasing divergence between Northern Ireland and Ireland over time – building, of course on the in-built capacity for divergence in the vast majority of areas outside the Protocol including environmental law, professional qualifications, employment law, procurement, immigration, banking, data, and a wide range of services and other rules. As such, the UK Government and the European Commission have agreed that the nature of these new arrangements requires enhanced market surveillance North-South, with a declaration from the Government committing to deepen on-the-market monitoring and enforcement in Northern Ireland, as well as to strengthen cooperation with the Irish Government to avoid any risks to the Single Market.”

The key aim set out in terms of divergence between Northern Ireland and Ireland is to ensure that checks and controls are not required at the border on the island of Ireland. 

EU law in Northern Ireland

The Windsor Framework means that less EU law will be applicable to Northern Ireland.  According to the UK Government, over 1,700 instruments of EU law have been removed “in areas like VAT, medicines, and food safety”.  The UK Government’s explainer for the Framework states that this means that a:

“Minimal set of EU rules – less than 3% – apply to preserve the privileged, unrestricted access for Northern Ireland businesses to the whole of the EU Single Market and avoid a hard border on the island of Ireland.”

The UK Government has stated that the 3% figure is based on the EU’s own calculations. 

It is also important to note that any manufacturer in Northern Ireland, or indeed anywhere else in the UK, will need to ensure that products for export to the EU market continue to comply with EU standards and regulations. 

What will this mean for Scotland?

The immediate obvious impact of the new arrangements set out in the Windsor Framework for Scotland is that businesses who export goods to be placed on the Northern Ireland market will face fewer barriers to trade.  This may be of particular benefit to businesses in the South-West of Scotland and around the Cairnryan to Belfast ferry route. 

In terms of specific sectors, Scotland’s seed potato industry may benefit. According to the British Agriculture Bureau, pre-EU exit “around 30,000 tonnes of GB seed potatoes were imported each year into the EU, principally from Scotland”.   Following the UK’s departure from the EU’s legal order at the end of 2020, the import of seed potatoes from Great Britain to Northern Ireland and the EU had been banned.  The new Framework includes a solution to allow seed potatoes to be moved from Great Britain to Northern Ireland.  There is, however, no provision for those seed potatoes to travel on to the EU though. 

A further benefit of the Framework is that it should allow for progress to be made in agreeing the terms of the UK’s participation in the Horizon Europe programme (which supports research and development programmes across Europe).  According to the Scottish Government:

“Scottish organisations secured a total of €852.6 million of the Horizon 2020 budget (up to July 2021). This represents […] 11.14% of the total funding awarded to UK organisations.”

At the press conference announcing the Framework, European Commission president Ursula von der Leyen stated that she was “happy to start immediately, right now, the work on an association agreement which is the precondition to join Horizon Europe.”

Implementation of the Framework

The Prime Minister has stated that the new Framework will be subject to a vote in the House of Commons “at the appropriate time and that vote will be respected”. Researchers at the House of Commons Library have stated that a vote on the Framework is not required by law.  Implementing the changes required as a result of the new Framework will require a number of different measures, these have been set out in the House of Commons library briefing on the Windsor Framework:

“New UK legislation will be required to implement some of the Framework (for example amending the Northern Ireland Act 1998 to implement the “Stormont Brake”). This could potentially be implemented by the regulations (secondary legislation) used to implement the Protocol under Section 8C of the European Union (Withdrawal) Act 2018; though the Government could choose to use primary legislation instead. Regardless, these legal changes will not be needed straight away.

The Joint Committee will need to meet to formally adopt the recommendations and decisions that will implement parts of the Framework.

The EU will also need to pass into law the proposed regulations in areas like medicines, checks on animals and plants, as well as adopting proposed European Council decisions including agreeing to amend the Protocol through the Joint Committee decisions.”

It is important to remember that the measures agreed in the Framework still need to be implemented and as a result the success or otherwise of the Windsor Framework will be determined by the future successful operation of the Protocol.  The Framework allows for the implementation of the agreement to be phased in.  This means some of the new arrangements for goods, agri-food, pets and plant movements will be introduced later this year and the remainder in 2024. The UK Government has stated that in the meantime, the current temporary standstill arrangements will continue to apply.

The Scottish Government’s reaction to the Framework

During a visit to Northern Ireland to explain the Windsor Framework, the Prime Minister said the agreement puts Northern Ireland in an “unbelievably special position” because it gives it access to both the UK and European Union markets.

Responding to the announcement of the new Framework, Angus Robertson, the Scottish Government Cabinet Secretary for the Constitution, Europe, External Affairs and Culture said:

“While Northern Ireland has been given preferential access to the huge European Single Market, Scotland which overwhelmingly voted to remain in the EU, has been ignored by the UK Government and subjected to the full damage of a disastrous hard Brexit.”

The Framework was negotiated by the European Commission on behalf of EU member states.  With it now agreed, the response of those member states will also be important.  A report in the Irish Times on 28 February 2023 suggested that member state governments would now pore over the detail and that there was initial scepticism in France and the Netherlands:

“The deal has a tough audience in Paris, which has long backed a sterner approach to protect the EU’s single market. Other geographically close states, such as the Dutch, are keen that British businesses do not benefit from unfair competition.”

However, there is no suggestion at this stage that member state governments will seek to reject the agreement. 

Iain McIver and Annie Bosse, SPICe research