On February 27, 2023, the United Kingdom and European Union announced that they had reached an agreement – the Windsor Framework – to further clarify the status of Northern Ireland post-Brexit. The Windsor Framework builds on 2021’s Northern Ireland Protocol to facilitate trade between Northern Ireland and the rest of the UK, and between Northern Ireland and the EU, while balancing the need for customs enforcement for the EU’s single market with the need for an open land border between Northern Ireland and the Republic of Ireland.
Background
Seven years after the UK elected to leave the EU in 2016’s “Brexit” referendum, and three years after the UK officially withdrew from the EU, the status of Northern Ireland continues to be a sticking point. Northern Ireland is the only country in the UK that shares a land border with an EU member state – the Republic of Ireland – and that border has a contentious history. The 1998 Good Friday Agreement ended decades of sectarian violence between Irish nationalists in favor of Irish reunification and unionists in favor of remaining part of the UK, but the demilitarization of the Irish border was supported by their mutual membership in the EU’s single market and customs union, allowing movement of goods and people across an open border. After Brexit, maintaining the open border was a priority— but, for the EU, needed to be balanced with implementing customs processes to protect the “integrity” of its single market.
In February 2021, the UK and EU announced the Northern Ireland (NI) Protocol, which maintained an open customs border between Northern Ireland and Ireland by implementing a “sea border” between Great Britain and Northern Ireland. Under this agreement, Northern Ireland effectively remained a part of the EU for trade purposes. As the International Law and Policy Brief wrote in 2021, the NI Protocol raised concerns in Northern Ireland about rising costs and shortages of food, pharmaceuticals, and agricultural products, as well as increased political tensions.
Reports on the economic impacts of the NI Protocol have been mixed: estimates of the cost of administering the Protocol range from £200 million ($241 million USD) to £850 million ($1 billion USD). One reason that the economic impact is unclear is because the Protocol’s customs regime has not yet been fully implemented. Throughout 2021 and 2022, the UK repeatedly and unilaterally extended the “grace period” for border checks on certain goods, such as farm produce, entering Northern Ireland from Great Britain. However, dissatisfaction with the Protocol itself has had a significant impact on Northern Ireland. Legislative business at the Northern Ireland Assembly has been suspended since January 2022 due to a boycott by the Democratic Unionist Party (DUP) over the Protocol, which the DUP views as “driv[ing] a wedge between Northern Ireland and the rest of the United Kingdom.” As a result, the Assembly has been unable to vote on issues ranging from “major funding decisions” to changes in Northern Ireland’s organ-donor registration process.
The Windsor Framework
Under the NI Protocol, Northern Ireland continued to adhere to EU product standards and regulations, and customs inspections were performed on goods crossing the sea between Great Britain and Northern Ireland, as opposed to across the Irish land border. The Windsor Framework creates two “lanes” for goods entering Northern Ireland from Great Britain: a “green lane” for goods entering Northern Ireland as an end destination, and a “red lane” for goods just passing through on the way to an end destination in the European Union. The green lane will allow the entry of goods that meet UK, but not EU, standards and remove the need for full customs checks. To minimize the risks of improper use of the green lane, it will be available only to registered “trusted traders” and require certain products to be labeled as “not for EU.”
The Windsor Framework also improves Northern Ireland’s ability to align with the rest of the UK on other forms of trade policy, with some continued limitations. Under the NI Protocol, Northern Ireland could not adopt the value-added tax (VAT) changes made in the rest of the UK after Brexit and remained subject to the EU’s VAT rules. The Windsor Framework will allow Northern Ireland to apply UK VAT rates to certain goods, paving the way for implementation of UK’s zero rates on “energy-saving materials such as heat pumps and solar panels” and reduced duties on alcohol. The agreement also provides for a process to exempt certain goods from EU VAT rules if they are “not at risk of entering the EU,” and exempts Northern Ireland from the EU’s new VAT program for small businesses, which will start in 2025. Additionally, the NI Protocol required UK subsidies to be referred to the EU for approval if they were expected to “affect trade” between Northern Ireland and the EU. This provision of the agreement remains in place under the Windsor Framework, but the new agreement narrows its application to subsidies with a “proven real, genuine and material link” to such trade and provides additional exceptions expected to exempt 98% of UK subsidies benefiting Northern Ireland from requiring EU approval.
The Windsor Framework also creates a process for Northern Ireland to object to changes in EU rules. The “Stormont Break” provision allows the Northern Ireland Assembly to object to and exempt Northern Ireland from changes to EU rules, where a new rule is “significantly” different from the original and will have a persistent and “significant impact specific to everyday life of communities in Northern Ireland.” The process for triggering the Stormont Break explicitly requires cross-party cooperation from the Northern Ireland Assembly, requiring the backing of 30 Members of the Legislative Assembly (MLAs) from two political parties. It also requires the Assembly to be in session and have appointed a first minister and deputy first minister— appointments currently delayed by the DUP’s boycott.
On the other hand, the Windsor Framework does not change the NI Protocol regarding the continued jurisdiction of the European Court of Justice (ECJ) over Northern Ireland. The UK government has emphasized that the Windsor Framework still substantially reduces the number of EU laws that apply in Northern Ireland, but this is likely to be a sticking point for critics of the agreement.
Response to the Framework
At their February 27 press conference announcing the Windsor Framework, UK Prime Minister Rishi Sunak and European Commission President Ursula von der Leyen expressed confidence in the agreement as an improvement for UK-EU relations and for Northern Ireland’s economy. Internationally, the agreement has also drawn praise from U.S. President Joe Biden, who is expected to visit Northern Ireland in April for the upcoming 25th anniversary of the Good Friday Agreement. However, some UK politicians – including former Prime Minister Boris Johnson, who was in office when the NI Protocol was originally negotiated in 2020 – have criticized the agreement. Locally, the Belfast Telegraph reports that “two-thirds of people in Northern Ireland” support the Windsor Framework, but “73% of DUP voters” do not, while the Irish Times reports that 45% of its own survey respondents support the Framework, 16.9% oppose, and 38.1% “neither support or oppose.”
The Windsor Framework was ratified by the UK and EU on March 24, following a vote in the UK’s House of Commons to approve the Framework’s “Stormont Break” provision. This provision was approved by a vote of 515 to 29, but all eight of the Democratic Unionist Party’s MPs voted against this provision. In light of the DUP’s continued disapproval of the Windsor Framework and Northern Ireland Protocol, the party is likely to continue their boycott of the Northern Ireland Assembly for the foreseeable future.
Author Biography: Alessandra Palazzolo is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She received her B.A. in International Affairs with a concentration in International Economics from The George Washington University’s Elliott School of International Affairs.
Editor: R. Avery Morrow, ILPB Moderator-in-Chief & GW Law J.D. Candidate, 2024.