The ‘Northern Ireland Protocol' signed by the United Kingdom and the European Union on 1 January 2021 has been much criticised over the years by the people of Northern Ireland for being excessively burdensome. On 27 February 2023, an agreement was reached to amend the Protocol. Once entered into force, such agreement will lead to both the simplification of procedures applicable to the exchange of goods between Great Britain and Northern Ireland and to the recognition of autonomy for the Northern Irish Parliament (Stormont Parliament) in the application of specific European trade rules.
Prior to Brexit, trade between Northern Ireland (one of the four constituent countries of the United Kingdom) and the Republic of Ireland (a country completely independent from the United Kingdom) had always been smooth thanks to the European Union single market rules. In 2016, however, following the outcome of the Brexit referendum, negotiations aimed at obtaining a customs agreement had to be undertaken to ensure a fluid continuation of trade between Northern Ireland and the Republic of Ireland.
This agreement has long been at the centre of Brexit negotiations, given the political history of the Irish region and the need to preserve the balances painstakingly achieved with the Good Friday Agreement.
An initial solution to this issue was reached by former Prime Minister Boris Johnson, who agreed with the European Union the ‘Northern Ireland Protocol', which became part of international law and officially entered into force on 1 January 2021.
This agreement introduced a series of controls on all goods destined for or transiting Northern Ireland, including those coming from Great Britain.
The Protocol was immediately criticised by the Unionist parties and Northern Irish businesses as the new controls on goods, in their view, would have only created an effective and unwanted border between the two Irelands, and increased costs and red tape.
On 27 February 2023, after much mutual effort, the United Kingdom and the European Union jointly announced the ‘Windsor Framework', an agreement that will amend the 2021 Protocol as soon as it enters into force. The main changes will be:
- Simplification of customs practices;
- Powers to suspend EU rules, through the so-called ‘Stormont Brake';
- Enforcement of British food regulations in Northern Ireland.
Simplification of customs practices
The Windsor Framework eases controls on goods coming from Great Britain to Northern Ireland (and vice versa) by assigning them to the ‘Green Lane'. Operators in the Green Lane will complete one digital certificate per ‘truck movement' instead of several forms for each load. This will eliminate the need for export declarations for most goods moving from Great Britain to Northern Ireland.
In contrast, goods bound for the EU single market (i.e. the Republic of Ireland) will be subject to full customs controls in the ‘Red Lane' at Northern Ireland ports.
Stormont Brake
The protocol concluded by Boris Johnson provides for certain specific European trade rules to continue to apply in Northern Ireland.
The Windsor Framework in this regard introduces a major innovation: the ‘Stormont Brake'.
In essence, the Northern Ireland Parliament, which consists of 90 MPs, has the power to intervene if specific changes are made to EU laws, applied in Northern Ireland, that would have a significant and lasting impact on the daily lives of Northern Irish citizens.
For this to happen, at least 30 members of the Stormont Parliament, from at least two different political parties, are required to sign a petition containing solid arguments showing that the harmful impact of the changes is likely to persist. Activation of the ‘Stormont Brake' does not require a majority of the Belfast Assembly, allowing both members of the unionist DUP party and independence supporters such as Sinn Féin to appeal without mutual consent.
Once the petition is signed, the UK government can immediately suspend the application of the European law blocked by Northern Ireland.
At this point, the dispute, if not resolved by a joint committee composed by of British and European officials and established under the Windsor Framework itself, will be referred to an arbitration panel.
This panel, appointed by both parties, will have the task of deciding whether the activation of the ‘Stormont Brake' was justified and fulfilled all necessary requirements.
In the event that the arbitration decision rules that the circumstances necessary for the activation of the ‘Stormont Brake' had not been met, the new European law would also apply to Northern Ireland.
On the other hand, if the arbitration decision confirms the correctness of the activation of the ‘Stormont Brake', the new European rule would be disapplied in Northern Ireland. In this second case there would be a ‘regulatory divergence' from the neighboring Republic of Ireland, and the European Union would have to take specific ‘corrective measures' to address this new situation.
Food regulations
Finally, the new Protocol, as amended by the Windsor Framework, will stipulate that the UK public health and safety rules will apply to all food and drink retailing in the UK domestic market. UK rules on public health, marketing, organic products, labelling, genetic modification and drinks (such as wines, spirits and mineral waters) will also apply in Northern Ireland. This will result in the elimination of more than 60 European food standards contained in the original protocol.
Thus, the Windsor Framework is likely to be welcomed by supermarkets, wholesalers, hospitality establishments and food producers, as they will simplify their business operations.
In conclusion the Windsor Framework is a good compromise: on the one hand it guarantees the customs border between the EU and the UK, while on the other hand it recognises the UK's customs unity and sovereignty to Northern Ireland.
Originally Published by 23 June 2023
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