The merry wiles of Windsor
The Windsor Framework announced yesterday aims to supersede the unloved Northern Ireland Protocol, but what is it and will it work?
Right. This was, I suppose, inevitable. The government of the United Kingdom and the European Union have, at last, reached a new agreement over the constitutional, economic and commercial position of Northern Ireland after Brexit. The Windsor Framework, unveiled yesterday (Monday 27 February) by the UK prime minister, Rishi Sunak, and the president of the European Commission, Ursula von der Leyen, is the best attempt of the negotiating parties to create a better, more workable and more palatable structure in which Northern Ireland can now sit in its undoubtedly nuanced and delicate position between the UK and the only EU member state which shares a land border with the UK, the Republic of Ireland.
(Yes, I know that “the Republic of” Ireland is a slightly elaborated term for that political entity which, according to Article 4 of its constitution, is called simply “Ireland” or “Éire”. The text reads in full “The name of the State is Éire, or, in the English language, Ireland.” The Republic of Ireland Act 1948, a short piece of legislation, complicates rather than clarifies when it says in section 2 “It is hereby declared that the description of the State shall be the Republic of Ireland”. In any event, while I appreciate that terminology matters, I will use the phrase “the Republic of Ireland” for the nation state, to distinguish it from the geographical name of the island which also comprises Northern Ireland, part of the United Kingdom. If you find the inclusion of the word “Republic”, I suggest that you may need your sensibilities tempered by exposure to reality.)
We were told that when this all happened, it would happen quickly. In fact, there was a delay: the noises off from the UK government before last week suggested that a deal was on the cusp of being announced, but then nothing happened for a week. My weekly column in City AM, published yesterday, addressed the issue in advance of any announcement, but it was not surprising that everything fell into place on the day of its publication (I suggest no causal link). Nor is the whole affair by any means finished. As I write, the Democratic Unionist Party (DUP), the largest Unionist party and second-largest party overall in the Northern Ireland Assembly, and the party which has since May 2022 been refusing to allow the election of a speaker and therefore preventing the assembly from proceeding with any business, including the nomination of a new executive, is scrutinising the details of the new framework before it delivers a binding and decisive verdict. Commentators from all corners will be doing the same, though it is the way of things that there has already been a considerable weight on instant reaction.
I will not rehearse the events which led to the drafting and agreement of the Northern Ireland Protocol, an annex to the Brexit withdrawal agreement, approved in December 2019 before the agreement as a whole was ratified in January 2020. The protocol attempted to square the circle of Northern Ireland leaving the EU as a constituent part of the United Kingdom, while also remaining part of the EU’s Single Market. It has been an unloved provision because it attempted to do the impossible, and while some submitted to its existence as a best try to solve the problem, others, particularly in the Unionist community, found it intolerable. Since the last elections for the Northern Ireland Assembly, the DUP has refused to take part in the process of devolved government until the protocol was repudiated, and the prime minister has been seeking to conclude the terms of a replacement which would ease economic problems in Northern Ireland, maintain the integrity of the Single Market and assuage Unionist gut-fear of a dilution of the union between Great Britain and Northern Ireland.
Yesterday, then, was revealed the new negotiated settlement which is to take the place of the Northern Ireland Protocol. The Windsor Framework does two major things to address criticisms of the status quo, and on the support for and effectiveness of these measures will turn the immediate political fortunes of Northern Ireland. Firstly, to address the fact that Northern Ireland’s inclusion within the Single Market has entailed time-consuming and costly checks on goods being imported into Northern Ireland from Great Britain—within the United Kingdom, therefore, and within what is supposed to be, according to the Act of Union 1800, its own single market—the framework creates two separate channels for those imports.
The first, the “green lane”, is designed for retail and wholesale goods for which Northern Ireland are the final destination, and which will not, therefore, ever enter the EU or affect its Single Market in any way. These good comprise about two-thirds of all imports into Northern Ireland from Great Britain. This green lane will see checks and paperwork significantly reduced, though not abolished, to make their passage as straightforward and convenient as possible. The screening will be based not on international customs standards but on commercial data-sharing.
The red lane system will operate for goods which are intended merely to transit through Northern Ireland on their way into the EU. Because these will cross the external border of the Single Market, the European Union remains adamant that these must still undergo a degree of scrutiny, and so will be subject to the same processes as goods entering the EU from any external jurisdiction.
This kind of simplification has been perhaps the leading demand of the business community of Northern Ireland. The director-general of the Confederation of British Industry (CBI), the advocacy group representing nearly 200,000 British businesses, is Tony Danker, who has been in post since November 2020. He was born and schooled in Belfast, before reading law at the University of Manchester, and has a highly diverse curriculum vitae which includes stints with consultancy giants McKinsey and Company (1998-2008), a spell as a special adviser in HM Treasury working on public sector reforms (2008-10) and seven years as a senior executive at Guardian Media Group (2010-17), working mainly on strategy. Perhaps because of his childhood, he has been an articulate and persuasive voice on the protocol, stressing the need for effective political institutions to create stability and an operating devolved government with which business can cooperate. Last summer, he said:
If you want to if you want to build a prosperous Northern Ireland, which in turn, by the way, delivers a peaceful Northern Ireland, then you have to pay attention to what is the competitive advantage of Northern Irish business.
He particularly linked stable governance to the ability of private enterprise to operate in a prosperous and profitable way, without having unwillingly to mirror the day-by-day crises of Northern Ireland’s political culture. “It's a problem that every time a packet of sausages crosses the border, we need to bring down the Executive or we need we need Dublin, London and Brussels to have a war of words.”
The solution provided by the Windsor Framework has been broadly welcomed. The Northern Ireland Business Brexit Working Group, a collaboration of 14 industry bodies across the province, identified the issues of peace and stability as the foundation of any amelioration of economic conditions.
Reaching an agreement is an important step in securing the stability and certainty businesses have been seeking… we would encourage the UK and EU to continue with a constructive, solutions-focussed approach as businesses adjust to the new arrangements… we will now need time and space to work through the technical detail with our members.
The chief executive of Retail NI, Glyn Roberts, almost exactly echoed those sentiments.
On an initial analysis, this new agreement represents welcome progress towards providing the stability and certainty that our retail, wholesale and supplier members are seeking.
The business community evidently sees the technical details of making importation easier as almost secondary, or at least important in part as a proxy: agreement on new arrangements will, it is hoped, satisfy the criticisms of political leaders, especially the DUP, and persuade them to convene the new assembly, form an executive and revive devolved government. It is an interesting comment on the opinion of the private sector of the Stormont administration: devolution now seems to be woven into the expectations of “normality”, because it is closer to the electorate and stakeholder groups and can, if carried out with skill, be more immediately reactive to the requirements of industry and probably more likely to be swayed than the government in London operating direct rule, the situation which currently prevails.
The second major provision of the Windsor Framework, designed to address what the UK government has identified as a “democratic deficit”, but perhaps more cynically but realistically to give opponents of the protocol a sense of agency and control over the operation of European Union legislation within a part of the United Kingdom, is what has been dubbed the “Stormont Brake”. This offers the Northern Ireland Assembly a mechanism for challenging regulations drafted at an EU level and felt to be inappropriate and undesirable for the conditions of Northern Ireland. The government’s documentation describes the brake as:
Giving the institutions, once restored, a genuine and powerful role in the decision on whether or not significant new goods rules impacting on everyday life in Northern Ireland should apply.
Peter Donaghy, a senior manager at professional services heavyweight EY, last night tweeted the schematic below which illustrates the basic operation of the Stormont Brake.
The process is this: if MLAs identify a new EU regulation to which they object, they may lodge an objection which must be supported by no fewer than 30 MLAs from at least two parties, the same mechanism as submitting a petition of concern, a device to ensure that a measure is subject not just to a simple majority but a majority of both communities. For the EU regulation to be eligible for review, it must have a potential specific and ongoing impact on everyday life. Subject to those conditions, the regulation will be suspended and referred for consideration to the Withdrawal Agreement Joint Committee, a body made up of representatives of the UK government and the European Union and designed to resolve any issues arising from the implementation of the Withdrawal Agreement.
The joint committee, having considered the regulation identified as being of concern, can confirm its suspension or agree unanimously to dismiss the operation of the Stormont Brake and allow it to be implemented. The requirement for unanimity is important, because it has enabled the government to stress that the UK had a veto over any regulations with which the Northern Ireland Assembly, or members of it, at any rate, is uncomfortable. If the regulation is disallowed, that verdict will be permanent. In addition, the government emphasises that this decision-making process cannot simply be overridden by the EU.
This new safeguard in the treaty is not subject to ECJ oversight, and any dispute on this issue would be resolved through subsequent independent arbitration according to international, not EU, law.
The invocation of the European Court of Justice is absolutely central, as the court has become a bogeyman both for the DUP and for more Brexit-inclining Conservative parliamentarians. In a final flourish, the UK presents the framework as containing an opportunity, using the word neutrally, for Northern Ireland and the rest of the EU Single Market to diverge. This is, after all, an inevitability if the Stormont Brake is activated successfully. In a sop to the more carnivorous end of the Conservative Party’s Brexit spectrum, the document is almost dismissive of the consequences of this regulatory divergence, and responds with the civil servant’s equivalent of a teenager’s shrug:
It would be a matter for the EU how to deal with the consequent impact on their market. Recognising this, the EU will have the ability to take ‘appropriate remedial measures’.
In other words, “not my problem, guv”. This assertion of distance from consequences—a leitmotif for some more rash Brexiteers, perhaps—is essentially a political dimension of the framework, appetising morsels for those Conservatives who manage to see everything through the prism of at attitude towards the European Union. If it achieves its objectives, it may be that no-one will mind very much.
What the Windsor Framework seeks to achieve, then, is to reduce dramatically the logistical and administrative burdens which are currently slowing the importation of goods into Northern Ireland from Great Britain, and allow the Northern Ireland Assembly to engage, at one remove, with the implementation of EU regulations and have a mechanism to affect them. What it does not do, and this is fascinating, is make any significant changes to the area of constitutional principle, sovereignty and jurisdiction.
In these terms, the most noxious part of the Northern Ireland Protocol was its de facto establishment of a border between Great Britain and Northern Ireland in the middle of the Irish Sea, in order to prevent the necessity for a hard land border between Northern Ireland and the Republic of Ireland. This notion of a land border is often dismissed as politically and practically impossible. It is certainly the case that the EU would have stringent conditions for the policing of the border, as it is an external frontier of the union, behind which there is the glittering prize of the free movement of people, goods and services (although Ireland is not a member of the visa-free Schengen Area within the EU, in which internal borders have been effectively abolished).
It is, however, worth observing that the UK and Ireland (before they joined what was then the European Economic Community in January 1973) enjoyed a common travel area from 1923, immediately after the formal establishment of the Irish Free State. Each country agreed to observe and, where necessary, implement the others’ immigration decisions, so neither could be used as a safe haven for those pursued by the authorities in the other. This was a practical alternative to policing the long, twisting, 310-mile land border between the Free State and Northern Ireland. It is true that the situation has changed since then in many ways, but it is open to the professional sceptic to wonder what decides which problems are deemed insuperable and which are addressed with ingenuity and determination.
When the Withdrawal Agreement, complete with the Northern Ireland Protocol, became effective on 31 January 2020, the UK entered a transitional period in which the full measures of Brexit would not be enforced. Nonetheless, many Unionists found the presence of even an informal border in the Irish Sea as intolerable on grounds of principle. It is not hard to see why. Setting aside the beset-on-all-sides bunker mentality which seems to come easily to more febrile or nihilistic Unionists, the very foundation of the union between Great Britain and Northern Ireland is that there should be as little separation between the two as possible. An economic border was not only the basis for inconvenient and costly customs checks, but it struck at the fact of the union. It placed Northern Ireland at least in part in a separate jurisdiction from Great Britain, and, worse, maintained the writ of the European Court of Justice over certain aspects of Northern Ireland but not of Great Britain. No nationalist could have designed a more uncomfortable or objectionable settlement for high-minded constitutionalist Unionists.
The repudiation of the protocol therefore became the central demand of the DUP and its red line for participating in the assembly after the May 2022 elections. The month before that, the party published its policy for removing the protocol, which required as its first order of business the removal of the Irish sea border. Equally, however, there was literally no prospect of the EU being willing to sacrifice the ultimate jurisdiction of the ECJ over Northern Ireland so long as the province was afforded an albeit-unorthodox place within the Single Market. Again, one can see why that was an impossible demand for the EU to concede: as Ursula von der Leyen, the president of the European Commission, remarked casually at yesterday’s press conference, “The ECJ is the ultimate jurisdiction for the Single Market, that is natural”.
Yet on this central point of political principle, the Windsor Framework changes nothing. Even if two-thirds of customs checks in Northern Ireland are scrapped, that is a matter of convenience rather than principle. For some imports, a notional border in the Irish Sea will remains. And the ECJ will continue to be the final court of appeal for relevant matters in Northern Ireland, while having no authority in the rest of the United Kingdom. No change to these facts is proposed, nor is any remotely possible in practical terms.
The Windsor Framework is a promising piece of diplomatic negotiation. If it delivers what it promises, the additional costs and inconvenience of important goods from Great Britain to Northern Ireland should fall considerably, which is already being welcomed by the business community. But we should not, cannot pretend it is something it is not. It does not circumscribe the ECJ’s jurisdiction or come close to “solving” the constitutional frictions and contradictions inherent in the Withdrawal Agreement and a special status for Northern Ireland in the EU Single Market.
Will it work? That, of course, is the primary question. Will the DUP, and enough of the Parliamentary Conservative Party to maintain Rishi Sunak’s political authority and credibility, accept the framework as a sincere and substantial effort to improve the current situation? It seems that Conservative MPs are tending towards supporting it. Steve Baker, one of the leading lights of the European Research Group and now minister of state for Northern Ireland, in an appearance on the BBC’s Newsnight in Monday which was racked by emotion and saw Baker struggling with incipient tears, confirmed that he welcomed the framework warmly as a great triumph and an “extraordinary opportunity” to begin to address Northern Ireland’s economic challenges. He is a totemic figure, and some Conservative MPs will have awaited his judgement as eagerly as that of the Man from Del Monte used to be anticipated.
If Brexiteers in the Conservative Party are beginning to row in behind the Windsor Framework, what about the DUP? The party leader, Sir Jeffrey Donaldson, has said that his team will be working through the night to go through the proposal in detail and form an opinion. But the initial indications are not good. Ian Paisley Jr, the DUP’s very own ancestral relic, has adjudged that the framework “doesn’t cut the mustard” nor does it provide a basis on which the DUP can enter government at Stormont. Sammy Wilson, the former Northern Ireland finance minister, doubts that the framework adequately protects the province’s place in the union, and, in a manner characteristic of his party, senses a malign intent.
The EU’s foot in the door in Northern Ireland is the first step in pushing that door wider and wider until they get the UK pulled back in.
He seems unlikely, then, to be talked round to endorsing the framework. Meanwhile, there are reports that the former prime minister, Boris Johnson, spoke privately to DUP leaders yesterday and urged them to be cautious before accepting the Windsor Framework. He has apparently used his time since losing office to discover high-minded principles; perhaps they were unearthed when moving out of Downing Street.
I would advise against rushing to judgement on the DUP. In one sense, they are absolutely correct in regarding the framework warily. It does not end the ECJ’s jurisdiction over Northern Ireland, nor does it do away with all customs checks between Great Britain and Northern Ireland. Unquestionably, it treats the province differently from the rest of the United Kingdom. That is the price for maintaining access to the Single Market, and it cannot go unpaid without forgoing that access.
What DUP members must ask themselves is where their true priorities lie. If they are unable to accept Northern Ireland’s theoretical status within the union being compromised, and that is a respectable argument, then they cannot assent to the framework, but they are also bound to consider what the consequences of that decision will be. The temporary suspension of normal political life cannot last forever.
If, by contrast, they think that achieving access not only to the single market within the UK but also the EU Single Market, not absolutely unconditionally but hedged by some small compromises, is a valuable prize and one which might allow Northern Ireland to grow and prosper significantly, they should grit their teeth and accept some erosion of their principled position and hope the tiny cracks do not widen. Moreover, they must begin to cooperate with the other parties at Stormont and agree to elect a speaker and then participate in the formation of a new Northern Ireland Executive. If they do that, it is inevitable that the first minister will be Sinn Féin’s Michelle O’Neill, and the chosen tribune of the DUP will have to take office as O’Neill’s deputy first minister. They are entitled, if it helps, to seek solace in the fact that, under the peculiar provisions of the Belfast/Good Friday Agreement, the first minister and deputy first minister of Northern Ireland are in theory co-eval, a gruesome, misshapen Pushmi-Pullyu but a dyarchy nonetheless.
Sooner or later, Brexit was going to force the political communities of Northern Ireland to strip away verbiage, tergiversation, well-polished myths and sleight of hand, and face some deeply uncomfortable choices. Theoretical sovereignty and constitutional purity, or the potential of economic growth and a restoration of something resembling normality? I do not set up that antithesis in a loaded way: these are genuinely agonising decisions, and I genuinely cannot say what my own reaction would be. (The DUP have not asked my opinion, though, as for all political parties, it is available for a small consideration.) What the Windsor Framework does, if nothing else, is clear away some skeins of mist to reveal the true shape of the mountain to be climbed. It forces us, and them, to look, our eyes clear-sighted and wide open. So, what do you want to do? It’s decision time, and there is no provision to abstain. Stick, or twist?