Federico Fabbrini (Professor of Law, Dublin City University; Founding Director, Brexit Institute; Visiting Professor, Princeton University)

On Monday 27 February 2023 the Government of the United Kingdom (EU) and the Commission of the European Union (EU) announced they had reached a deal to settle disagreements around the Irish Protocol. The deal, known as the Windsor Framework, was a few weeks in the making and brings to an end over two years of political and diplomatic discord over the operation of post-Brexit trade arrangements in Northern Ireland – if it withstands scrutiny by the UK Parliament.

As is well known, the 2016 decision of the UK to leave the EU caused unprecedented difficulties for Northern Ireland. With the aim to avoid a hard border in the island of Ireland, and preserve the achievements of the 1998 Good Friday Agreement, the EU and the UK agreed in 2019 a Protocol on Ireland/Northern Ireland, which forms part of the Withdrawal Agreement (WA) regulating the terms of the UK exit from the EU. The Protocol designed a bespoke solution for Northern Ireland, effectively keeping it in the EU internal market, albeit with a number of mechanisms for democratic consent and safeguards.

By definition, therefore, the Protocol erected barriers to trade between Great Britain and Northern Ireland. But this caused outrage in the Unionist community. Moreover, the UK government never really defended the deal it had negotiated with, indeed proposed to, the EU. Rather, in 2022 legislation was put forward in Westminster that openly and blatantly contravened the terms of the Irish Protocol. This state of affairs profoundly damaged trust between the EU and the UK, and risked a trade war.

When taking over as Prime Minister after the short, disastrous stint of Liz Truss, Rishi Sunak faced a diminished British economy, with runaway inflation, labor-management unrest and fiscal challenges. Charting a more moderate path, he quickly realized that the key out of this situation was to reconnect with the EU – which after all, despite Brexit, remains the main UK economic partner, accounting for roughly half of its imports and exports. Resolving the Irish Protocol was therefore essential to rebuild a positive relationship with the EU, and potentially expand it beyond the bare-bone terms of the Trade & Cooperation Agreement (TCA) – the free trade deal governing EU-UK relations since 2021.

At the same time, the EU also had an interest in settling the quarrels over Northern Ireland, and finding common interest with the UK, particularly when the war in Ukraine is absorbing most of the EU’s foreign policy attention, and increasing the need for cooperation with like-minded democratic countries in the fight against imperialist Russia.

The Windsor Framework, therefore, achieves this purpose of reconnecting the EU and the UK through a clever combination of legal ingenuity and political rhetoric. In a joint Political Declaration released today, the two parties hailed their agreement as “a new way forward” and the UK government in particular has emphatically claimed that Windsor Framework “fundamentally amends the text and provisions of the original Protocol”.

Truth be told, the Windsor Framework does very little of that. From a legal point of view, the Framework does not constitute a wholesale revision of the 2019 Protocol on Ireland/Northern Ireland. On the contrary, the Framework rests on a Political accord between the parties, which will be implemented partially by unilateral acts of the EU and the UK, and partially by decisions to be adopted by the institutions created by the WA and the Protocol – notably the EU-UK Joint Committee – as the Protocol itself foresees.

Indeed, a forthcoming meeting of the Joint Committee is due to formally approve legal provisions, already published in draft form, which will facilitate trade in goods between Great Britain and Northern Ireland, when these are not at risk of entering Ireland and the EU internal market. Moreover, the UK will be awarded greater leeway in the application of EU state aid and tax rules, while simultaneously committing to exercise greater market surveillance, and share more data on goods’ movement with the EU. At the same time, the EU committed to passing legislation allowing the free flow of medicinal products.

Arguably the most important novelty agreed in the Windsor Framework – and indeed one of the few which will result in an amendment of the Protocol (introduction of Article 13(3a)), to be formally approved by the Joint Committee next month – is the so-called “Stormont Brake”. This mechanism, designed to secure a voice to Northern Ireland on EU legislation, will allow the UK government to seek the suspension of an amended or new EU internal market law, if it is poised to cause harm to the Northern Ireland economy. This is indeed a significant concession by the EU to UK arguments about democratic deficit. But notice the mechanisms only applies to amended or replaced EU acts – so to future EU legislation, not to the over 200 pieces of the EU acquis which currently apply in Northern Ireland.

Moreover, the Windsor Framework does not diminish in any way whatsoever the role of the European Court of Justice (ECJ) – a red herring for the Tory Eurosceptics. Indeed, in the Framework the EU and the UK have committed to seek amicable resolution of disputes and to arbitration – but of course this was always possible under the existing terms of the Protocol. The final say for the ECJ on interpretation and application of EU internal market law in Northern Ireland is however set in the Protocol – and today’s deal doesn’t change it.

Yet, beyond the legal technicalities, the Windsor Framework does achieve its political purpose of rebuilding a positive relationship between the EU and the UK – a fact visible in the decision by the UK government to abandon its illegal Northern Ireland Protocol bill, and conversely by the EU Commission to suspend infringement proceedings against the UK.

Needless to say, as in prior moments of the Brexit process, the challenge for Prime Minister Sunak is now to secure Parliamentary approval for the deal. If he fails, he will follow in the tradition of Theresa May, who lost her job due to the Brexiteers’ opposition. If he succeeds – perhaps with the crucial votes of the Labour Opposition – the biggest prize may be yet to come for the UK: namely an expanded, Norway-style, trade deal with the EU, although it may ultimately fall precisely on a future Labour government to finish the task and go beyond the TCA.

 

Professor Federico Fabbrini is the Founding Director of the DCU Brexit Institute and a visiting Professor at Princeton.

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.