Tel. +44 (0)20 7287 4414
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The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

Restoration is just beginning, the Windsor Framework is just the start


It's been three years since the Northern Ireland Protocol, and the rest of the Brexit deal, was ratified in January 2020. In between then and now, we've heard about the impact of the Protocol from the Unionists in Northern Ireland in our 2021 Waterloo Day Lecture, we've seen Part 5 of the Internal Market Bill come and go, and we've seen the Northern Ireland Protocol Bill – a courageous attempt to undo the damage of the Protocol, come and go. Now, alas, after tense negotiations for a new deal on Northern Ireland, a new agreement is announced, with much fanfare, in the Windsor Guildhall. Downing Street presented a 9-tweet thread on summarising the new agreement and what it presented to Northern Ireland.

The document released by the Government, and by the European Commission, spells out, in a little bit more detail, what the new Framework entails. Less a list of cast-iron commitments, it reads closer to a political manifesto of wants and wishes, hinting at arguments of yore, such as the Sainsbury's sausage dispute, as Steven Barrett points out in his cogent piece in The Spectator.

Northern Ireland's history is embedded in the identity of the Union that is the United Kingdom – the emigration of Irish people into all parts of the United Kingdom and the delicate history of Northern Ireland means that the issues Northern Ireland faces and their place in this Union, were once a key part of Britain's national consciousness.

One cannot forget the Troubles and the many attempts at reconciliation and piece on the islands that make up both the United Kingdom and the Republic of Ireland, just as much as one cannot forget that Northern Ireland remains a key part of the United Kingdom and that treating it as a completely separate entity is ignorant of reality, to say the least.

It is in light of the unique place Northern Ireland has in this national consciousness that The Bruges Group will not demur from the position that the political, legal, and economic separation of Northern Ireland from the rest of the UK should be kept to a minimum. Hence, the agreement to significantly reduce friction, previously outlined in the NI Protocol Bill, is a step in the right direction.

EU rules and regulations may still remain – but there are now caveats and levers. NI's place in the Union may not be absolutely adherent to Article VI – but this is a massive leap in that direction.

There are three key areas of emphasis regarding the future of Northern Ireland in store, in the documentation of the Windsor Framework.

  1. Flow of goods

First is the flow of goods between Northern Ireland and the rest of the United Kingdom, of which the main flagship policy is nothing new. The concept of Green and Red Lanes was introduced in the now-shelved Northern Ireland Protocol Bill where goods in the Green Lane - which will remain in the UK only – will have the usual suite of heavy paperwork and red tape removed, vastly removing the friction between the rest of the UK and Northern Ireland. The red lane relates to goods destined for the Republic of Ireland, in which EU laws, checks, and controls remain.

This is a step in the right direction. Northern Ireland was in a difficult halfway house since the Protocol, with the 'sausage ban' and medicines shortages making headlines and causing distress all around. Moreover, an attempt by the former DUP Leader and then-Minister for Agriculture, Edwin Poots, to suspend Brexit checks, was ruled unlawful by the High Court in Belfast. This 3-year itch is finally coming to an end.

  1. NI's Place in the Union

Second is Northern Ireland's place in the union, a much contested and heated area of debate that many have raised concerns about regarding the Protocol. Our 2021 Waterloo Day Lecture on 'The Future of the Union' covered this issue, and Lord Dodds of Duncairn, the DUP's former Westminster Leader, had then highlighted the NI Protocol as the 'one of the contributory factors to the instability' in Northern Ireland.

On the technical side, the Windsor Framework spells out that Northern Ireland will benefit from the same changes in VAT and excise duties, and pet travel requirements as the rest of the UK, making their transport more seamless. Furthermore, some progress on access to medicines was made. Noting how the majority of medicines in NI was from Great Britain, it will now be for the UK's MHRA, not the European Medicines Agency, approving medicines destined for Northern Ireland. This means that the controversial sausage bans will be 'scrapped permanently', and the old system of having 500 pages of paperwork for food destined for Northern Ireland from the rest of the UK will be replaced with a single document. These are significant advances and serve to ameliorate much of the previous issues over different treatment for Northern Ireland from the rest of the UK.

Significant improvements, yes. Progress, yes. But does this constitute to Northern Ireland being treated as any other part of the United Kingdom – no.

It is on this question of different treatment that makes up one of the DUP's 'seven tests' where the Windsor Framework runs into trouble, though it is very possible this is the best deal yet. Whether this deal does 'cut the mustard' per se, will all depend on if the DUP and other Unionists in Northern Ireland do believe this could be their best deal yet. The seven tests, criteria by which the DUP will judge any future British government agreements on the Protocol, includes a guarantee on Article VI of the Act of Union 1800, which states that the people of every part of the UK are of equal footing with regards to goods in either country, have the same privileges, with respect to trade in the UK.

According to the independent legal advice from former Attorney General of Northern Ireland John Larkin KC, commissioned by the Centre for the Union – which is led by Bruges Group Editor Ethan Thoburn – the Windsor Framework remains incompatible with the Act of Union, and the proposals do not strengthen the constitutional guarantee of the status of Northern Ireland.

The progress made was an immense improvement from the distress and chaos caused by the Protocol, and it is no mean feat. But the Framework fails to maintain the fundamental position of Northern Ireland as having an equal place in the Union, as any other part of the UK. The pre-2019 position of Northern Ireland has not yet been restored.

  1. The Democratic Deficit

The third issue the Windsor Framework attempts to address is 'the democratic deficit', and an area where a new term – the Stormont Brake – is coined. The Stormont Brake packs a punch, and it is indeed an innovative solution to the quagmire that is how sovereignty in a post-Good Friday Agreement can be exercised in Northern Ireland.

The brake is meant to address two issues, (I) the flow of goods and any future EU regulations that "would have a significant impact on the day-to-day lives of businesses and citizens", and (II) the jurisdiction of the European Court of Justice in Northern Ireland. We've heard about the concerns about post-Brexit sovereignty and the implications of the ECJs' post-protocol jurisdiction over Northern Ireland at our Waterloo Day Lecture from 2021, and this is the proposed solution.

The aim is to end the chances of new EU rules on the flow of goods being imposed. This will mean that, whenever there is a change to EU customs rules that is deemed to significantly impact everyday life, it will require 30 or more Members of the Legislative Assembly (MLAs) from 2 or more parties to file a Petition of Concern, automatically suspending the rule.

Thereafter, this rule can be settled in the UK-EU Joint Committee and can only be applied when agreed to in committee, giving the UK a veto on such rules that would change everyday life for the people of Northern Ireland. This entire process, effectively creating two layers of vetoes, provides the added benefit of not being under the European Court of Justice, ameliorating one of the key frustrations of the Protocol – the ECJ's oversight.

This brake will also be protected via new statutory provisions to be made to the Northern Ireland Act of 1998 and will hence be locked in for the future.

To conclude, while the new Framework may exactly align with the most purist of interpretations of the DUP's seven tests, and Northern Ireland's place in the Union certainly remains a concern, this agreement does it utmost to curb the excesses and difficulties from the Protocol, it returns a significant degree of sovereignty to the people of Northern Ireland and the United Kingdom, and effectively ensures that any new EU rule that affects the daily lives of people in Northern Ireland is given the people's consent.

It is clear that more needs to be done to ensure that the letter and spirit of the Act of Union 1800 is adhered to and that all parts of the United Kingdom do, indeed, stay one United Kingdom – of equal footing and access. It is an aspiration, if not a necessity, for this government and successive governments to work towards this. 

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