After two years of ineffective negotiations between the United Kingdom (UK) and the European Union (EU) over the parties’ dispute regarding the Northern Ireland Protocol and the Irish Sea customs border, the parties have ultimately reached a compromise with an agreement called the Windsor Framework.[1] The UK Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, announced the agreement on February 27, 2023, just weeks before the 25th anniversary of the Good Friday Agreement signaling a return to relatively friendlier relations between the UK and EU that have been hostile since the Brexit referendum vote in 2016.[2] Although some members of the Democratic Unionist Party (DUP) and the Conservative Party have criticized the Windsor Framework for weakening the Northern Ireland position in the UK system,[3] the Framework is the best way forward legally, economically, and socially for both the UK and EU.
A legal conflict between the UK and the EU over the Northern Ireland Protocol began shortly after the Protocol became effective in January 2021 because the UK unilaterally extended grace periods, which prompted the EU to bring legal action against the UK.[4] The UK then called for renegotiations to the Protocol, and when negotiations proved futile, the UK responded by introducing the Northern Ireland Protocol Bill in June 2022.[5] The bill would unilaterally override key aspects of the Protocol, which the EU claimed violated international law because the UK would be ignoring binding international obligations.[6] The UK Government claimed the bill did not violate international law because it was justified under the doctrine of necessity since the UK could only safeguard their essential national interests with this bill given the failed negotiations.[7] However, with the announcement of the Windsor Framework compromise, the UK government published a policy paper detailing the UK government’s latest legal position on the Framework and the bill.[8] In this policy paper, the UK government states, “Given the terms of the Windsor Framework and the clear availability of a durable negotiated solution, there would now be no legal justification for enacting the Northern Ireland Protocol Bill.”[9] Therefore, when the Windsor Framework becomes effective, the UK government will withdraw the Northern Ireland Protocol Bill while the EU will withdraw all of the legal actions it launched against the UK.[10]
The Windsor Framework addresses issues in the Northern Ireland Protocol by aiming to accelerate the flow of goods between Northern Ireland and Great Britain while preserving Northern Ireland’s access to the EU single market through an open border between the Republic of Ireland and Northern Ireland.[11] The agreement simplifies border controls and reduces customs checks at the Irish Sea customs border by introducing less strict “green” lanes for goods intending to stay in Northern Ireland and “red” lanes for goods that may be sent to the EU, which includes the Republic of Ireland.[12] The agreement also includes a mechanism called the “Stormont brake,” which permits members of the Northern Ireland Assembly in Stormont to object to new EU rules on goods and customs if 30 or more assembly members from at least two political parties sign a petition in opposition.[13] However, the brake can only be triggered if a power-sharing agreement is in place in Stormont, and it cannot be used for trivial reasons but is reserved for “significantly different” rules.[14] The brake process would not be overseen by the European Court of Justice, which marks a major concession from the EU, but the court would still have authority over whether Northern Ireland is following the EU’s single market rules.[15]
Given the decades-long history of violent armed conflict over a hard border on the island of Ireland, known as the Troubles, that was mostly ended by the Good Friday Agreement of 1998, the Windsor Framework needed to fall in line with the primary objective of the 1998 agreement – peace on the island of Ireland through an open border. The Windsor Framework is an adequate compromise because it involves both parties making concessions while also retaining an open border on the island of Ireland, which prevents the return of an armed conflict over a hard border.
However, concerns exist regarding the UK’s Retained EU Law Bill, which currently sits in the final stages of review in the House of Lords, because the bill would repeal 4,000 EU laws near the end of 2023 that were kept in UK law after Brexit.[16] While a UK government spokesperson has emphasized that the Retained EU Law Bill will not affect the Windsor Framework, concerns amongst Northern Ireland businesses exist because the bill could deepen the regulatory difference for Northern Ireland businesses putting them at an economic disadvantage over Great Britain businesses.[17] Due to these concerns, the UK government has begun a “full-scale retreat” on the bill by considering the delay of the bill and moving to a scaled-down and less rushed version.[18] If the bill becomes law in its current form and causes Northern Ireland to abandon EU single market laws and regulations to remain competitive with Great Britain businesses, then tensions and legal action between the UK and EU could return over the Irish Sea customs border.
[1] House of Commons Library, Northern Ireland Protocol: The Windsor Framework, 2023, Research Briefing, at 6, (UK), https://commonslibrary.parliament.uk/research-briefings/cbp-9736/.
[2] Supra note 1; See Rishi Sunak praises Good Friday Agreement ahead of Joe Biden visit, BBC (Apr. 9, 2023), https://www.bbc.com/news/uk-northern-ireland-65225793.
[3] See Otto Svendsen & Donatienne Ruy, The Windsor Framework Heralds a Breakthrough in EU-UK Relations, Center for Strategic & International Studies, (Mar. 6, 2023), https://www.csis.org/analysis/windsor-framework-heralds-breakthrough-eu-uk-relations.
[4] See Iain McIver, How the Disagreement Over the NI Protocol has Affected EU-UK Relations, Scottish Parliament Information Centre (June 16, 2022), https://spice-spotlight.scot/2022/06/16/how-the-disagreement-over-the-ni-protocol-has-affected-eu-uk-relations/.
[5] See McIver, supra note 4; Northern Ireland Protocol Bill 2022-23, HL Bill [52] (Gr. Brit.), https://bills.parliament.uk/bills/3182.
[6] HM Government, UK Government Legal Position: The Windsor Framework, Policy Paper, 2023, (UK), https://www.gov.uk/government/publications/the-windsor-framework.
[7] Id.
[8] Id.
[9] Id.
[10] Prime Minister’s Office, Windsor Framework unveiled to fix problems of the Northern Ireland Protocol, Press Release, 2023, (UK), https://www.gov.uk/government/news/windsor-framework-unveiled-to-fix-problems-of-the-northern-ireland-protocol.
[11] Svendsen, supra note 3.
[12] Id.
[13] See Id.
[14] See Id.
[15] Tom Edgington, Brexit: What are the Northern Ireland protocol and Windsor Framework?, BBC, (Feb. 28, 2023), https://www.bbc.com/news/explainers-53724381.
[16] John Campbell, Windsor Framework: Plan to scrap EU laws could undermine NI deal, says report, BBC (Mar. 31, 2023), https://www.bbc.com/news/uk-northern-ireland-65138005.; Retained EU Law (Revocation and Reform) Bill, 2022-23, HL Bill [117] (Gr. Brit.), https://bills.parliament.uk/bills/3340.
[17] Campbell, supra note 16.
[18] Toby Helm, Government retreats from Brexit bill plan to ditch EU laws, The Guardian (Apr. 9, 2023), https://www.theguardian.com/politics/2023/apr/09/tories-in-retreat-from-brexit-bill-to-scrap-thousands-of-eu-laws.
