Andrew McCormick, former Director General of International Relations in the Northern Ireland Executive Office (2018-2021), gives an early assessment of the Windsor Framework, concluding that it provides a positive basis for moving forward.
The Windsor Framework is a very significant achievement – well beyond expectations on what might have been negotiable in the context set by the previous stances of the UK government and the EU.
The outcome takes us as close as possible to the very centre of the Brexit trilemma, achieving the avoidance of a hard land border between the two parts of Ireland, no material limits on the ability of the UK to operate outside the EU single market and customs union, and minimal checks and controls on goods moving from Great Britain to Northern Ireland.
If the benchmark is the Backstop, or the original Protocol, the Windsor Framework is much better, in both practical, constitutional and presentational terms.
It is very important to read both the documents published by the UK government and the fact sheet and Q&A published by the EU. There are some specific changes to the text of the Protocol, and major changes to the detailed application of the Protocol, some of which are to be implemented by amendment of EU legislation.
It does not achieve absolute sovereignty, nor remove all the requirements that affect the movement of goods from Great Britain to Northern Ireland (as some information requirements remain). But the rhetoric on those issues was never founded in reality: complete removal of controls – or even information requirements – on goods entering Northern Ireland would be incompatible with the commitment to an open land border.
The key difference now is that the controls are risk-based and proportionate, rather than standard application of EU rules for the management of a third country border.
Three examples show how the new agreement is better than either the Withdrawal Agreement as negotiated by the May administration and the Protocol as originally agreed in October 2019 and as interpreted and applied by the agreements in the Joint Committee in December 2020.
The examples are in three categories – the practical issues around the movement of goods; regulatory issues addressing competition and the level playing field; and the issues of sovereignty.
The Windsor Framework confirms the core idea of the concept of green and red lanes for the movement of goods from Great Britain to Northern Ireland. This leads to one of the specific amendments to the text of the Protocol in Article 6(2). The extension of this idea to agri-food products is a very major step, given the EU’s sensitivity towards health-related controls.
The new arrangements are a radical simplification of the EU’s Sanitary and Phytosanitary (SPS) controls, but they still include safeguards to protect against animal and plant disease entering the EU via Northern Ireland, including continued application of EU animal and plant health rules.
That appears to be a subtle but potentially important constraint on the future of standards for animal and plant health across the UK, as it appears to imply, that the UK will have to find a way of ensuring that agri-food products destined for NI meet EU standards. Across all types of goods, the new provisions retain a reference to the need to safeguard the integrity of the EU’s single market.
On VAT and state aid, the Protocol provided for NI to stay subject to EU state aid rules and VAT structures to prevent unfair competition within the single market.
The new provisions are quite detailed, and do not represent a blanket removal of all constraint. They achieve a careful compromise, with important new freedoms for the UK in relation to Northern Ireland (on VAT for SMEs, goods that are definitively not at risk of entering the EU, and aspects of tax on alcoholic beverages), but also sufficient protection for EU interests.
This is achieved by detailed reference to the limited range of contexts rather than (as was accepted by the UK government in the original Protocol) blanket adoption of EU law.
The most inflammatory issue has been the issue of sovereignty. The UK government has now said that the Windsor Framework gives the Northern Ireland Assembly the power to invoke a brake on the adoption of changes to EU law in Northern Ireland. This is in addition to the original provisions for a consent vote by simple majority, and for UK-EU agreement in the Joint Committee on the application of new (but not amended) EU law to Northern Ireland.
It is a very significant and novel development, which has high merit both strategically and tactically. In effect it would give either of the main designations (unionist or nationalist), or indeed any 30 MLAs, the power to invoke a Petition of Concern. This gives the Assembly a very strong role and goes well beyond the previous commitments which ruled out any side having veto.
As a tactic relevant to the immediate context, it is a very tasty looking carrot, as it can only operate if the Assembly and the Executive are up and running. There are also very significant limits on the scope for the brake to be invoked, and the Assembly cannot apply it directly, but only through the UK government. The clear implication is that the mechanism should not undermine the participation of Northern Ireland in the single market.
Clearly the UK government felt it was essential to deliver something based on cross community consent despite having accepted in 2019 that no side could have a veto. The risk is that some seek to invoke the brake not for the stated reasons and subject to the tightly defined criteria, but as a means of pursuing their objections in principle to the Protocol. It appears that it would be up to the UK government to turn down any Petition of Concern that did not meet the criteria (though the EU would also have power to object), but there may be a need for cool-headed dispute resolution on this point.
The single market is not an a la carte menu and only dynamic alignment (which Norway and some other non-EU members accept) is needed to ensure ongoing participation. It would be very disturbing if a minority in the Assembly could cause loss of participation over a single change in the acquis, unless there was (in some possible future scenario) some new development in EU legislation that would create a material risk to Northern Ireland’s interest.
That risk is greater for Northern Ireland than the EEA countries, because of the importance of alignment with the rest of the United Kingdom. Hence the issue that caused such angst for the May administration (divergence versus alignment) has not gone away.
The Windsor Framework provides a very positive basis for moving forward and shows that detailed, practical engagement was and will remain the only way to address the complexity of the implications of Brexit for Northern Ireland.
By Andrew McCormick, former Director General of International Relations in the Northern Ireland Executive Office (2018-2021).
