Monday, 27 February saw the EU and the UK reached a political agreement on resolving issues in Northern Ireland around the Protocol on Ireland/Northern Ireland. While the Windsor Framework touches on several issues, this Just the Facts focuses on customs, agri-food, the role of the Court of Justice of the EU, the Stormont Brake and outlines the next steps.
What is the Protocol on Ireland/Northern Ireland?
The Protocol was the result of protracted and often contentious negotiations between the EU and the UK after the UK voted in June 2016 to leave the EU.
A dilemma was created by then-Prime Minister Theresa May in her January 2017 ‘Plan for Britain’ speech at Lancaster House in London. She outlined that the UK would be leaving both the EU’s Single Market and Customs Union. At the same time, the UK and the EU were both committed to avoiding customs checks and infrastructure between Ireland and Northern Ireland.
The 2018 ‘backstop’ Protocol and the 2019 Protocol attempted to solve this.
The 2018 ‘backstop’ Protocol
The ‘backstop’ was initially outlined in the December 2017 ‘Joint Report’ between the EU and the UK on the progress of negotiations at that time. It stated that “in the absence of agreed solutions, the United Kingdom will maintain full alignment” with the EU’s Single Market and Customs Union.
Although the backstop was adopted by both the EU and UK in November 2018 into the Withdrawal Agreement, political opposition in the UK was strong and as a result, Prime Minister Theresa May was unable to get it through parliament. This was one of the reasons why Boris Johnson replaced Theresa May as Prime Minister in July 2019.
The 2019 Protocol
His government published proposals to revise the ‘backstop’ Protocol. While Northern Ireland would still leave the EU’s Customs Union with the UK, checks on goods moving from Great Britain to Northern Ireland would be needed.
The 2019 Protocol was adopted into a revised Withdrawal Agreement (pages 104 – 114), paving the way for the UK to formally leave the EU on 31 January 2020.
How did the Protocol become contentious in Northern Ireland?
However, the 2019 Protocol was criticised. An internal HM Treasury document highlighted that “customs declarations and documentary and physical checks […] will be highly disruptive to the NI economy”. This created challenges for businesses moving goods from Great Britain into Northern Ireland.
Unionist opposition to the 2019 Protocol contributed to the collapse of the Northern Ireland Executive in February 2022. The Democratic Unionist Party (DUP) believe that it treated Northern Ireland differently to the rest of the United Kingdom.
Following the October 2022 Northern Ireland assembly elections, the DUP refused to re-enter the power-sharing Executive until their ‘Seven Tests’ for a revised 2019 Protocol were met.
The Windsor Framework
The Windsor Framework was the result of an improvement in relations between the EU and the UK after Rishi Sunak succeeded Liz Truss as Prime Minister in October 2022.
The Framework was named after a meeting between Rishi Sunak and the President of the European Commission, Ursula von der Leyen, at the Fairmont Hotel at Windsor Great Park on 27 February 2023. The Agreement was announced later that day at the Windsor Guildhall.
What are the key changes contained in the Windsor Framework?
The ‘Trusted Trader and Authorised Carrier’ scheme is extended under the Framework to include a wider number of operators and businesses who are deemed to be ‘not at risk’ of moving goods from Great Britain into Ireland (and the EU’s Single Market), through Northern Ireland. These will be able to use a ‘green lane’ to simplify movements.
Traders that can prove that their goods are remaining in Northern Ireland will be able to submit a significantly simplified set of customs paperwork each month. Checks will only take place if smuggling is suspected.
People sending parcels to family and friends from Great Britain into Northern Ireland will not be subject to customs processes. This also applies to online retailers.
These arrangements are conditional on the EU having access to real-time UK customs IT systems and databases in order to perform risk assessments. The UK agreed to allow the EU to access this data in January 2023.
The Framework introduced simplified paperwork for businesses, such as supermarket chains, selling pre-packaged agri-food from Great Britain into Northern Ireland for final consumption there.
By joining a scheme, businesses will be required only one certification for each mixed load per lorry, that will be checked virtually. Physical inspections will initially take place for just 8% of consignments, reducing to 5% by 2025. A similar simplified scheme also applies to plant products and agricultural machinery.
The Framework also allows for a reduction in the number of EU consumer and public health laws that businesses had to previously comply with, such as labelling or genetic modification.
- Role of the Court of Justice of the EU:
There is no change to the role of the Court of Justice of the EU in the application of EU law in Northern Ireland under the Protocol.
Both the EU and the UK have committed to using existing EU-UK structures to anticipate and resolve issues relating to the Protocol. The Framework will also establish a new specific goods committee and a commitment to involve Northern Ireland stakeholders more in the Joint Consultative Working Group.
- The Stormont Brake:
This is similar to the Petition of Concern in the Belfast/Good Friday Agreement. The ‘Stormont brake’ can be triggered if 30 Members of the Legislative Assembly (MLAs) from two or more political parties can demonstrate, in exceptional circumstances, that a change introduced by an EU law will have “a significant impact specific to everyday life”, that is likely to continue. This applies to EU laws relating to the Protocol.
The UK government then considers this and can ask the Assembly for a non-binding vote on this issue, which could ‘release’ the brake. If the UK government supports MLAs, it has up to four weeks to suspend the relevant EU law. Any dispute resulting would be resolved through an independent arbiter, rather than the Court of Justice of the EU.
The Stormont Brake can only be used when the Northern Ireland Assembly and the Executive are fully functioning.
What are the next steps?
It could take a number of months before the Framework enters into force, as both the EU and the UK will be required to introduce and adopt legislation to accommodate the Framework.
Prime Minister Rishi Sunak stated that there will be a vote in the House of Commons “at the appropriate time and that vote will be respected”. Such a vote is not required by law, but it will give the Framework political support.
Although the UK government does not need the support of the DUP to pass the Windsor Framework in a House of Commons vote, their support is necessary for the restoration of the Northern Ireland Assembly and the Executive.
The DUP have stated that they “will not be rushed” on decision over Windsor Framework.
Responding to the Framework, President of the European Commission Ursula von der Leyen said that “supporting and protecting the hard-earned gains of the Good Friday (Belfast) Agreement was the prerequisite of our endeavour. Today, our achievement allows us to put forward definitive solutions that work for people and businesses in Northern Ireland”.
Vice-President of the European Commission for Interinstitutional Relations Maroš Šefčovič said that “the EU has from the very beginning shown genuine understanding for the unforeseen practical difficulties in implementing the Protocol on the ground”.