The Windsor Framework (WF) concluded between the UK and EU to resolve the difficulties associated with the Irish Border reflects a significant compromise, with the UK giving the most ground. The brainchild of a more pliant and technocratic Prime Minister than his two predecessors, Rishi Sunak’s WF is in many respects an agreement that should never have been needed. The new arrangement essentially compels the EU to do what it should have done under the original Northern Ireland Protocol, i.e. impose no unreasonable barriers to trade between Great Britain (GB) and Northern Ireland (NI) while maintaining sufficient safeguards that its Single Market would not be flooded with UK goods.
Purporting to be a binding agreement under international law and subject to the Vienna Convention on the Law of Treaties, the WF actually changes very little and in its vagueness is more of a political statement than a legal instrument. The EU has been quick to point out that it preserves the main pillars of the Northern Ireland Protocol and, most significantly, does not remove the customs border in the Irish Sea.
Encouragingly, though, the WF does create a fast-track ‘green lane’ for goods entering NI from GB which are not destined for the EU, precluding onerous customs checks that were severely interfering with the UK’s own internal market and causing economic harm to consumers and business in NI. Goods from GB which are destined for the EU will go via a ‘red lane’ requiring full third-country customs checks.
This pragmatic, risk-led approach to the border should have been in place from day one. Its acceptance now is testimony to the EU’s stubbornness during the Brexit negotiations. Ironically the WF’s green lane system seems to contemplate many of the ‘maximum facilitation’ ideas that had been proposed for the Irish land border, but which were rejected by the EU as unworkable. If the two-track customs system fails to provide adequate protection to the EU’s Single Market, the EU can terminate it unilaterally, another concession to Brussels.
More problematically for proponents of a full Brexit, NI remains subject to many facets of EU law and hence the jurisdiction of the Court of Justice of the European Union (CJEU), undermining UK sovereignty – one of the key motivations of Brexit. While some clarity has been provided regarding their precise scope, EU state aid rules still apply to NI and by extension could still affect businesses in GB. This issue could become more significant as the UK’s subsidies rules diverge from those of the EU, even more so during an era of increased global protectionism.
Much has been made of the WF’s so-called ‘Stormont Brake’ which enables the NI Assembly to pause changes in EU goods laws from applying to its territory giving the UK government a veto to prevent the law from applying in NI permanently. The language of the WF illustrates that this mechanism is intended to operate only in the most extreme circumstances as determined by arbitration, which itself might be subject to interpretation by the CJEU. The Stormont Brake may consequently serve more of a symbolic function than a practical one.
The WF also kills the NI Protocol Bill which would have resulted in the UK unilaterally breaking some of its commitments under the NI Protocol. Many viewed this as an extreme, if not illegal step, although it was arguably justified given the economic hardship wrought by the Protocol’s unnecessarily strict application. The Bill would have also eliminated the reach of EU law across all of the UK, arguably fulfilling the promise of Brexit. It is not clear how the EU would have reacted to the Bill becoming law (as it might have under Liz Truss), short of instigating a wide-ranging and mutually harmful trade war. Letting it go was a gesture of good faith, but in so doing Sunak may have surrendered his best bargaining chip for a more UK favourable deal.
Much like the UK-EU Trade and Cooperation Agreement (TCA) which has both good and bad elements, the WF is a significant improvement over the existing arrangements for NI and should be welcomed as a step in the right direction. It remains to be seen whether the WF will actually work in practice to enable the free flow of commerce across the UK and mend relations between the UK and the EU without pressuring the UK into maintaining regulatory alignment. It seems likely that further arrangements in relation to the Irish border will be needed over time. Perhaps the agreement should have instead been named the Windsor Transitional Framework. The acronym would then have been, somewhat appropriately given its many uncertainties, WTF.