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.

The UPC is now on the Final Stretch but the UK won't be Part of it

 

Jane Lambert

Art 1 of the Protocol to the Agreement on a Unified Patent Court on provisional application provides that the following articles of the Unified Patent Court Agreement shall enter into provisional application upon the entry into force of that Protocol:  arts 1-2, 4-5, 6 (1), 7, 10-19, 35 (1, 3 and 4), 36-41 and 71 (3) of the Agreement and arts 1-7 (1), 7 (5), 9-18, 20 (1), 22-28, 30, 32 and 33 of the Court's Statute. The Protocol came into force on 19 Jan 2022 pursuant to art 3 (1) of the Protocol following the deposit by the Austrian government of its instrument of ratification of the Protocol.

The news is likely to be welcomed by businesses around the world - including some in the United Kingdom - that hold European patents designating Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden. That is because the Agreement is expected to reduce the cost of patent litigation in those countries.  It will be a significant factor when determining where to carry on research and development and the UK may lose investment as a result.

Anyone wishing to discuss this article may call me on 020 7404 5252 during normal business hours or send me a message through my contact form.

Brexit Briefing May 2021

Lord Frost

Author HM Government Licence OGL 3.0 Source Wikimedia

 

Jane Lambert

Save for differences over the Northern Ireland Protocol May has been a quiet month for exchanges between the British government and the European Commission. Businesses in the UK appear to be coming to terms with the consequences of third-country status.  The UK has appeared n its own right at the World Trade Organization and the Department for International Trade has announced details of the proposed trade agreement with Australia which has caused some consternation with British farmers,

At their meeting in Brussels on 16 April 2021,  European Commission Vice-President Maroš Šefčovič and Lord Frost, Minister of State at the Cabinet Office agreed to further engagement with business groups, civil society and other stakeholders in Northern Ireland, In accordance with that agreement, he met business and community representatives on a joint 2-day visit to the province with the Northern Irish Secretary.  He talked to representatives of the aerospace, manufacturing, food and drink, retail, and life sciences industries about the challenges those industries were facing.

Lord Frost released the following statement in relation to his visit:

"It’s clear from my visit that the Protocol is presenting significant challenges for many in Northern Ireland. Businesses have gone to extraordinary efforts to make the current requirements work, but it is hard to see that the way the Protocol is currently operating can be sustainable for long.

We’re committed to working through the issues with the EU urgently and in good faith. I hope they will take a common sense, risk-based approach that enables us to agree a pragmatic way forward that substantially eases the burdens on Northern Ireland.

Solutions must be found rapidly in order to protect the Belfast (Good Friday) Agreement in all its dimensions and to minimise disruption to the everyday lives of people in Northern Ireland - as the Protocol itself requires. As the Prime Minister has made clear, we will continue to consider all our options in meeting our overriding responsibility for sustaining the peace and prosperity of everyone in Northern Ireland."

A development that I forgot to mention in my last Brexit Briefing is that the Trade Bill is now law.  The new Trade Act 2021 consists of 19 sections divided into 5 Parts with 6 Schedules.  It provides machinery for the implementation of trade agreements and establishes a Trade Remedies Authority and a Trade and Agriculture Commission,   I will discuss this statute in a separate article in due course.

The UK's Permanent Representative to the WTO, Simon Manley, addressed the WTO Heads of Delegation for the first time during the Trade Negotiations Committee on 4 May 2021.  He has also delivered policy statements on TRIPS, COVID19 vaccines and other matters.   For the moment, HM Government is not inclined to follow the lead of the USA in responding to calls for a patent waiver in respect of COVID vaccines and treatments (see my article The Patent Waiver Debate 8 May 2021 NIPC Law).

Accession negotiations with the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) have now been approved by the existing member states (see UK welcomes CPTPP nations’ invitation to begin accession 2 June 2021 DIT News Story).  One of the members of that partnership with which the Department has conducted advanced negotiations for a bilateral trade agreement is Australia. Among the proposals for that agreement is that Australian farm exports should enjoy tariff-free access to the British market after a period of adjustment.   This has precipitated calls from the National Farmers Union to stand up for farmers in Australia and NZ deals (see NFU joins calls for government to stand up for farmers in Australia and NZ deals 19 May 2021 NFU website).

Anyone wishing to discuss this article or any of the topics mentioned in it may call me on 020 7404 5252 during office hours or send me a message through my contact form at other times.