Alex Horne sets out why Rishi Sunak’s Windsor Framework should be seen as a pragmatic win for both the UK and Northern Ireland.
Seventy two hours after the unveiling of the new Windsor Framework it appears Rishi Sunak may be able to afford a sigh of relief. Some of the usual suspects may be unhappy. But the deal has landed fairly well. Those hoping for better relations with our nearest neighbours may have some cause for cautious optimism.
What can we expect from the new arrangements? The easiest place to start is with the government’s Command Paper. This states that the proposed new arrangements will ensure the same food safety laws apply for retail goods moved into Northern Ireland and that medicines licensing would be undertaken by the UK regulator. There are also number of legally binding, permanent solutions on problems including the movement of seed potatoes, sausages, and British trees. Onerous requirements on pet travel will be removed.
The major changes include the establishment of a new green lane for internal trade and the establishment of a ‘Stormont Brake’ to provide what the government describes as a sovereign veto for the UK on new goods rules in Northern Ireland. There will also be a new basis for VAT and excise arrangements which the government asserts will ensure NI will have the same VAT and alcohol taxes as the rest of the UK.
This all sounds like significant progress – although experts and stakeholders may still have some questions about how comprehensive these solutions are once they read the accompanying draft legal text.
Some of these proposed changes will require amendments to the legal text of the treaty which may be concluded through legally binding Joint Committee decisions. Other changes will require amendments to EU and UK domestic law.
One area which remains potentially problematic is state aid, on which it appears no significant changes have been made. The EU’s own factsheet is clear that EU State Aid rules have not gone away, but have merely been clarified.
The Stormont Brake is cleverly/cynically (take your pick) predicated on the restoration of the democratic institutions in Northern Ireland, placing pressure on the DUP to return to power sharing.
The Brake would allow 30 MLAs from two political parties to raise a petition of concern where goods rules in the Northern Ireland Protocol are going to be amended or replaced. This is designed to facilitate democratic dialogue. The Brake would not be available for trivial reasons and any new rule would have to have a significant impact specific to everyday life that is liable to persist. It is a measure of last resort and should only be used in exceptional circumstances.
Once the Brake is triggered, any new rule would be suspended and subject to discussion between the UK and the EU in the Joint Committee. The UK government has cast this as an unequivocal veto. However, it acknowledges that the permanent disapplication of rules would lead to divergence from EU rules, and that it would be up to the EU to decide how to deal with the consequential impact on their market.
The EU would have the ability to take appropriate remedial measures. That is, it could retaliate through proportionate trade related measures (usually described by the press as a ‘trade war’).
It is not clear how precisely the Brake would operate. But the final say certainly doesn’t rest with Northern Ireland. Rather, the UK government would decide whether a rule should be added and could potentially overrule any concerns from Stormont.
While the Brake is unlikely to satisfy absolutists in the DUP, it is clearly a pragmatic attempt to reflect concerns on the ground and give MLAs some input into the operation of the Protocol. This is an advance on the current arrangements.
A government Legal Position Paper accompanying the Command Paper highlights that the Windsor Framework is an ‘international arrangement’ which commits the parties to binding international law obligations, including changes to the Protocol. The position paper goes on to state that the amended Protocol would be governed by the Vienna Convention on the Law of Treaties (which means it is binding in international law). What this means in practice is that the Framework is a mix of political commitments and legally binding changes to the Protocol.
It is already evident from analysis of the new draft rules on VAT and the continuing need for (albeit simplified) declarations to use the green lanes, that some of the more sweeping claims made by the government may be exaggerated. Nonetheless, they remain great leaps forward. The EU’s factsheet is probably most helpful for those who want a simple un-glossed interpretation of the new arrangements.
A major positive is that the government has admitted that the Northern Ireland Protocol Bill is dead. This is very good news as it was both toxic for international relations and contrary to the rule of law.
Nonetheless, the new deal won’t satisfy purists looking for a complete removal of the jurisdiction of the European Court of Justice. This is all but impossible for the EU since the court is the final arbiter of EU law. What the deal has ensured is that far less EU law will apply in Northern Ireland, which should reduce the likelihood of any conflicts arising.
I suspect that we will now see a lot of complaints from hard-line Brexiters that the government will not give Parliament the opportunity to amend this agreement, and that it will try to implement it by secondary legislation. This is a significant issue. However, Conservative MPs have consistently voted against giving Parliament powers to scrutinise international agreements. Perhaps now, finally, they might come to realise that these things are important.
Overall, this is a pragmatic bundle of measures, which will be well received by consumers, businesses, and those concerned with maintaining good relations between the UK and the EU. Will it resolve every problem? Absolutely not. Should Sunak get a lot of credit for taking responsibility and pushing forward a workable deal. Absolutely.
By, Alexander Horne, barrister and visiting professor at Durham University. He previously worked as a parliamentary lawyer in both Houses of Parliament (2003-2021).