The Windsor Framework provides for the smoother flow of goods between Britain and Northern Ireland, but is it enough? asks Eoin O’Shea
It's been just over ten years since David Cameron, the UK's then Prime Minister, unveiled the idea of holding a referendum on EU membership.
On that fateful day, 23 January 2013, Cameron made the rather prophetic statement:
"If we leave the EU, we cannot, of course, leave Europe. It will remain for many years our biggest market, and forever our geographical neighbourhood. We are tied by a complex web of legal commitments."
The latest addition to the post-Brexit tsunami of legal commitments entered into by the UK and the EU, including a 177-page Withdrawal Agreement and a 2,530-page Trade and Co-Operation agreement, is the Windsor Framework.
The Windsor Agreement aims to update the 63-page Northern Ireland Protocol agreed by the UK and EU as part of the Withdrawal Agreement.
The Windsor Framework – in reality, several legal and political documents – was launched last week by the president of the EU's executive branch, Ursula Von Der Leyen, and UK Prime Minister Rishi Sunak at Windsor Guildhall.
The Windsor Framework came about because the Northern Ireland Protocol to the Withdrawal Agreement operated, in parts, like a manual for a United Ireland.
Back when former UK Prime Minister Boris Johnson was 'getting Brexit done', there was a fear that Ireland, north and south, might have different laws concerning trade, the movement of goods, customs, taxes and the like, leading to a hard border on the island of Ireland.
To counter such a border, it was decided by the UK and the EU that Britain would have its own British laws on those border/market/trade issues, and the Island of Ireland (north and south) would follow EU rules.
Leaving Northern Ireland subject to EU laws, the oversight of the EU court of justice in Luxembourg, and the full panoply of EU officialdom.
One view of the Northern Ireland protocol was that it permitted goods to flow between Northern Ireland and Ireland/EU without customs checks, duties, or paperwork. It also allowed for the free movement of goods between Northern Ireland and the rest of the UK.
Economist John Fitzgerald dubbed the situation as providing "unique dual access to both the British and the EU markets".
Similarly, Michael Gove, then a member of the UK cabinet, stated:
"That means that businesses in Northern Ireland have the opportunity to enjoy the best of both worlds; access to the European single market, because there's no infrastructure on the Island of Ireland, and at the same time unfettered access to the rest of the UK market."
Unfortunately, the Northern Ireland protocol didn't work. Neither politically nor economically.
Excessive paperwork and administrative uncertainty made it difficult, expensive, and slow for goods to move to and from Northern Ireland and Britain.
Imports and exports between Ireland and Northern Ireland skyrocketed as businesses in Northern Ireland found buying goods from Ireland/EU easier than from the neighbouring island.
In the first five months of 2022, for example, exports from Ireland to Northern Ireland increased by 42 percent compared to the previous year.
Politically, the original Northern Ireland protocol caused significant problems, including a boycott of the Stormont Assembly by the DUP and a threat by the UK to unilaterally override, with domestic legislation, the Protocol's operation.
All sides were fearful for the continued operation of the Good Friday Agreement and the possibility that relationships between communities within Northern Ireland and north/south and east/west ties could be negatively affected, perhaps for a generation.
In short, all roads have been leading to last week's Windsor Framework for some time.
The highlights of the Framework include the following:
- The introduction of a trusted trader system in Britain to facilitate smoother transport of goods to Northern Ireland;
- Identity and physical checks on goods are to be drastically reduced;
- The same food will be available on supermarket shelves in Northern Ireland as in the rest of the UK;
- Goods moving from Britain to Northern Ireland that are destined for the EU or at risk of entering the EU will be subject to full customs checks and controls;
- People in Northern Ireland will be able to get medicines, including new medicines, at the same time and under the same conditions as people in the rest of the UK;
- Certain goods travelling from Britain to Northern Ireland may carry labelling "not for EU", ensuring that products remain in Northern Ireland;
- Consumer-to-consumer parcels will be entirely exempt from the main customs requirements;
- Travel to and from Britain with pets will be easier and require reduced documentation;
- Garden centres in Northern Ireland will have an easier time stocking plants, shrubs, trees and seeds from Britain;
- The UK has agreed to share live data with the EU on movements of goods from Britain to Northern Ireland to give additional comfort to the EU that goods transfer rules are being adhered to and that the single market is not at risk; and
- The number of proposed changes to the application of EU VAT and excise duty requirements to Northern Ireland.
It has been agreed that members of the Northern Ireland Assembly might, by way of a 'Stormont Brake', to stop new EU law from applying in Northern Ireland (as a last resort).
It is also proposed by the parties that there be enhanced involvement of Northern Ireland interests in the operation of the joint committees set up between the UK and the EU on the management of relationships.
As can be seen, the arrangements under the Windsor Framework provide for a much smoother flow of goods between Britain and Northern Ireland than was the case under the Northern Ireland protocol.
But, as also can be seen, the arrangements are not as smooth as before Brexit.
Eoin O'Shea is a Barrister at Law and Chartered Accountant
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