Brexit Institute News

The Windsor Framework – Does it ‘cut the mustard’?

Feargal Cochrane (University of Kent)

First things first. The Windsor Framework moves things on significantly in the whole Brexit process. While everyone (not least myself) is focused on its implications for Northern Ireland, there is a bigger picture. The UK government has finally reached an agreement with the European Union over the operation of the Northern Ireland Protocol that will finally, to use the hackneyed phrase, Get Brexit Done. If the Conservative Party continues to lag significantly behind Labour this is likely to be Prime Minister Rishi Sunak’s lasting legacy in the job, to the chagrin of his immediate predecessors Liz Truss and Boris Johnson. It is highly unlikely that he or any of his successors will want to reopen the Brexit Pandora’s Box that they have finally squeezed shut. Sunak has a healthy parliamentary majority, bipartisan support in the House of Commons and huge international support for the policy, not least from US President Joe Biden.

In essence it is Protocol 2.0, an upgrade on the previous version with a lot of the glitches removed in terms of the movement of goods from GB to NI and smoothing out of the overarching legal rules surrounding potential future disputes between the EU and the UK. But once you get past the political spin, it is essentially the same operating system as before.

So some headline points: There will be a green lane and a red lane for goods arriving from GB into NI under a trusted trader scheme, with the expectation that the vast majority of goods will go through the green route and only goods that are destined for the Irish Republic will go into the red lane.

This deal will significantly help to, in Sunak’s own words, ‘deliver smooth flowing trade within the whole United Kingdom.’ A data sharing agreement between the UK and EU is key to this, as through this system the EU is confident it will have detailed information to ensure there is no leakage of goods from the green lane into the Irish Republic.  This also provides a strategic advantage to businesses in Northern Ireland with full access to the UK market and a foot in the EU single market –potentially the best of both worlds that over time might prove to be a game changer for the Northern Ireland economy.

The other notable dimension to the Windsor Framework is the so-called ‘Stormont Brake’. This was pushed hard by Sunak in his press conference yesterday as amounting to giving the Northern Ireland Assembly a veto over the implementation of new EU regulations. In his own words; ‘the Stormont Brake … means that Stormont can in fact stop them from applying in Northern Ireland.’ However, careful reading of the text would suggest Sunak is guilty of massive overselling here to appeal to unionists, who in effect are the only faction likely to want to use it. Firstly it means that those trying to pull the brake via the existing Petition of Concern rules, would have to be participating in the Assembly and Executive, so in effect it forces unionists back into power-sharing and the DUP into the deputy First Minister role. Secondly, it requires a potentially huge burden of proof that new EU regulations would cause a significant problem. Thirdly and most importantly it does not give Stormont the power to stop new EU regulations from applying in Northern Ireland. It merely allows a request to be put to the UK government that it pulls the emergency brake. In other words the veto lies with the British government not with Stormont and given recent unionist experience some may be reluctant to give the UK government that level of trust.

Which brings us to the unionists. TUV leader Jim Allister was first off the blocks with a broadly negative reaction which will have surprised hardly anyone. The DUP response has been curiously inconsistent so far, with party leader Jeffrey Donaldson issuing a holding statement saying it represents progress but clarification would be needed over the details of the legal text. Other senior figures in the party, Ian Paisley, Sammy Wilson and Lord Dodds were more forthright and negative, with Paisley claiming that ‘My gut instinct is that it doesn’t cut the mustard, we’re not there’.

In the summer of 2021 the DUP set out seven tests for the operation of the Northern Ireland Protocol and yesterday’s agreement will be set against those. Some of these are arguably more important than others and probably the biggest issue is whether Northern Ireland is subject to the same trading and sovereignty arrangements that apply everywhere else in the UK.

But, and it is a big but, there is still going to be a trade border in the Irish Sea – even if it is likely to be barely perceptible for most people as the overwhelming majority of GB to NI trade will go through the green channel and only a small amount into the red channel. However, while it will all work more smoothly, the hard reality for unionists is that Northern Ireland will be treated differently than GB even if that is more of a theoretical than a practical distinction.

There will be checks and there will be border control posts set up in Northern Ireland and if there are future trade disputes it seems that the European Court of Justice (ECJ) will have the final say, which might be seen by some unionists as placing them under EU rather than UK sovereignty.

There is a brake that can only be pulled by the UK government but given the importance of the UK-EU diplomatic relationship this may turn out to be a vestigial organ in the body of the Windsor Framework.

Sir Jeffrey Donaldson and his party have much to ponder. They could argue convincingly that this version of the Protocol is great for peace and prosperity in Northern Ireland and is a result of their campaign to have the old version removed. However, if they take a negative stance, the current model of devolved power-sharing in Northern Ireland is likely to disappear for the foreseeable future, direct rule with an Irish dimension will replace devolved government and a Border Poll on Irish reunification seems almost inevitable.

Almost 25 years ago on 10 April 1998 Jeffrey Donaldson ran to his car and drove away from Castle Buildings where the multiparty talks had just concluded. He opposed the Belfast/Good Friday Agreement (GFA), undermined the leader of his former Party the UUP and left it to join the Democratic Unionist Party (DUP) along with several other colleagues including Arlene Foster and Peter Weir.

David Trimble took a political risk within a divided party and an equally divided electorate and his leadership of the UUP never truly recovered. Bit by bit his authority waned and the DUP hoovered up disgruntled unionist voters which led to Trimble’s resignation and the UUP’s electoral eclipse by Ian Paisley’s DUP.

The irony of recent history is presumably not lost on Sir Jeffrey 25 years on as he is now facing David Trimble’s choice and perhaps fearing there is a younger version of himself fishing in his or her pocket for their car keys.


Feargal Cochrane is Professor Emeritus and Senior Research Fellow in the Conflict Analysis Research Centre at the University of Kent. His last book Northern Ireland: The Fragile Peace was published by Yale University Press in 2021. His forthcoming book Belfast: The History of a City and Its People will be published in August 2023 also with Yale.


Photo Credits: European Commission

The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.