The Northern Ireland Protocol: The Windsor Framework

Author Maximilian Dorrbecker Licence CC BY-SA 2.5   Source Wikimedia Commons

 

Jane Lambert

One of the provisions of the settlement that ended the inter-communal violence in Northern Ireland was that there should be no immigration controls or customs posts between Northern Ireland and the Irish Republic.  There was no problem in complying with that provision so long as the United Kingdom and the Republic remained members of the European Union. When HM government made clear that the United Kingdom would leave not only the EU but also the single market and customs union there was a risk that the Irish Republic would have to restore border controls in order to maintain the integrity of the European single market. 

There were two ways of preventing that outcome:

• the whole UK could continue to abide by at least some of the single market rules;  or
• Northern Ireland could remain in the single market but there would be customs checks between Great Britain and Northern Ireland.

Mrs May proposed the first course believing that no British Prime Minister would countenance a border between two parts of the United Kingdom but her party failed to support her. Her successor opted for the second which was supported by the party. The option was eventually incorporated into the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as the Protocol on Ireland/Northern Ireland.

The difficulties that Mrs May had anticipated quickly occurred.  As I noted in British Proposals for Renegotiating the Northern Ireland Protocol on 29 July 2021:

"Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland. These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement."

The British government's objections to the Protocol were set out in the position paper, Northern Ireland Protocol: the way forward (CP 502).  The administration of the previous Prime Minister but one introduced legislation into the House of Commons which would have required courts and civil servants to disapply those provisions of the Protocol to which the government objected.  In response, the European Commission indicated that it was prepared to negotiate changes to the Protocol and its application which would meet at least some of the British government's objections while reserving its right to bring non-compliance proceedings should the government continue on its course.

Such negotiations were begun by the administration of the former Prime Minister but one and were continued by his successors. They have resulted in the release of a flurry of documents from the UK and the Commission on 27 Feb 2023 which are referred to collectively as "the Windsor Framework."  Probably the most important of those documents is the Windsor Political Declaration by the European Commission and the Government of the United Kingdom which sets out the understanding of the British government and the Commission to change the operation of the Protocol.  The declaration is not a treaty but a statement of the parties' intentions.   It will have to be implemented by legislation in both the UK and the EU.

One of the other documents released by HM government is  The Windsor Framework: A New Way Forward presented to Parliament by the Prime Minister at the command of the King.  That sets out the British government's explanation and amplification of the Political Declaration and its arguments in favour of it.  The equivalent document from the Commission is a fact sheet which can be downloaded from The Windsor Framework: a new way forward for the Protocol on Ireland/Northern Ireland on the Commission's website.

The Windsor Framework is not a done deal.  Scepticism has been expressed by some politicians in England and Northern Ireland. However, the Labour Party has offered to support the government in passing implementing legislation which should enable it to outvote any opposition from Conservative and Ulster Unionist MPs.

As this is primarily an intellectual property blog I do not propose to chronicle the implementation of the Framework. However. it does mark an improvement in relations between the UK and EU which should facilitate British participation in Horizon Europe.   Such participation should result in inventions in the UK.  This is the most encouraging news that I have been able to report since I set up this publication.   Anyone wishing to discuss this article with me may call me on +44 (0)20 7404 5252 during British office hours or send me a message through my contact form.