The Windsor Framework: A New Post-Brexit Agreement Governing the EU-UK Relationship

Since the departure of the United Kingdom from the European Union, the new relationship that has emerged has been a rocky one. Nonetheless, the EU and the UK have managed to conclude a number of agreements to govern the post-exit relationship with the Withdrawal Agreement (which includes the controversial Northern Ireland Protocol (“the Protocol”)), the Trade and Cooperation Agreement (which governs, among other things, the new trade relationship between the EU and the UK) and now the Windsor Framework (“the Framework”). The Framework (of which the EU and the UK have published their own versions which are not exactly aligned) will attempt to resolve the long-standing dispute on the application of the Protocol.

The Protocol avoids the creation of a hard border between Northern Ireland and Ireland by allowing the latter to retain access to the EU single market for goods. However, in order to protect the integrity of the single market, EU rules on product standards and food health and sanitation continue to apply in Northern Ireland. This has inevitably resulted in trade barriers being created for intra-UK trade as customs and regulatory documentary checks and inspections need to be carried out on goods coming into Northern Ireland from Great Britain.

There are three key elements to the Framework to improve Northern Ireland’s position vis-à-vis the UK. These are to (i) restore the smooth flow of trade within the UK’s own internal market, i.e., between Northern Ireland and Great Britain, (ii) ensure Northern Ireland’s place within the United Kingdom, and to (iii) reduce the democratic deficit by giving Northern Ireland more oversight regarding the EU rules that will apply on its territory.

An aspect of the Protocol which proved divisive was that, regardless of whether they were destined to enter the EU market or stay in Northern Ireland, all goods coming from Great Britain were subject to checks and inspections. The Framework creates a new green lane for goods that are meant only for Northern Ireland and are not at risk of entering the EU Single Market. Traders, who qualify as “trusted traders” under the new scheme, will be able to benefit from reduced paperwork and customs checks thus removing the trade barriers for goods moving between Great Britain and Northern Ireland. In contrast, goods which are intended to enter the single market will remain in the “red lane” and will still be subject to full customs checks and controls.

The Framework also outlines a number of mechanisms to remove other practical problems that existed under the Protocol and provides for measures to ensure that Northern Ireland benefits from policies that operate in the rest of the UK. In this regard, goods such as plants, seeds, trees and forestry machinery no longer require full EU certification provided they remain in Northern Ireland, and the onerous requirements on pets travelling with their owners have been removed (which required certification for each movement of a pet into Northern Ireland). Additionally, other British measures concerning incentives for energy saving materials, changes to alcohol duties and the approval of medicines will apply UK-wide, including in Northern Ireland. In essence, the Framework aims to remove, as far as possible, “any sense of a border in the Irish Sea” and ensure Northern Ireland’s place in the UK.

Finally, the Framework provides for a new emergency mechanism, called the “Stormont Brake”, that allows the UK Government, at the request of 30 members of the Northern Ireland’s Legislative Assembly (“MLAs”), to stop the application of new EU law, which amends or replaces existing EU law, in Northern Ireland. This is significant because this mechanism reflects the existing Petition of Concern procedure currently in Northern Ireland whereby 30 MLAs can petition the Assembly requiring a matter to be passed on a cross-community basis instead of by a simple majority. In order to trigger the Stormont Brake, there must be something significantly different about the new rule and MLAs will need to show that the rule has a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.

However, once triggered, the law would be suspended from coming into effect and can only subsequently apply in Northern Ireland if both the EU and UK agree jointly. If there is no such agreement, the rule in question will be permanently disapplied in Northern Ireland. In the case that this leads to divergence between the EU single market and Northern Ireland, the EU will be entitled to take “appropriate remedial measures” under Article 13(4) of the Protocol.

These new measures under the Framework go a long way to addressing the concerns of Unionists regarding the barriers created between Northern Ireland and the rest of Great Britain. With the 25^th anniversary of the Good Friday Agreement gone and done, both the UK and the EU are hopeful that the new Framework will bridge the gap between them so that they can finally move on from Brexit and Northern Ireland. However, the Democratic Unionist Party is against the new Framework so it remains to be seen what impact it will have in restoring the power-sharing institutions of Northern Ireland.