Northern Ireland Protocol: The Windsor Framework

Agreement reached

On 27 February 2023 the Prime Minister, Rishi Sunak, and the President of the European Commission, Ursula von der Leyen, announced that a new agreement had been reached to change the way the Northern Ireland Protocol operates. This agreement is called the Windsor Framework.

It comes after two years of negotiations between the EU and the UK since the Protocol came into force in January 2021.

The proposed changes to the Protocol are laid out in a UK Government Command Paper, The Windsor Framework: A new way forward (PDF), and a political declaration (PDF). The Prime Minister also made a detailed statement to the House of Commons. The EU has published materials explaining the agreement as well.

The Framework will be implemented through a series of legal instruments, some of which involve the EU-UK Joint Committee. The EU-UK Joint Committee is responsible for the implementation and application of the Withdrawal Agreement, of which the Protocol is a part.

These legal instruments include non-legally binding joint and unilateral declarations and Joint Committee recommendations, but also amendments to the Protocol itself made through a binding Joint Committee decision, as well as proposals to change EU law.

Main changes to the Protocol

The most significant changes to the Protocol made by the Windsor Framework are:

• A new system of checks on goods moving from Great Britain to Northern Ireland:
  • Goods destined to stay in Northern Ireland will go through a “green lane” and have far fewer checks and controls.
  • Goods moving on to Ireland and/or the rest of the EU will have to go through a “red lane” and be subject to full controls and checks.
  • Checks and controls on agri-food (food and other agricultural products) have been simplified. UK public health standards will apply to agri-food goods moved to Northern Ireland. Products whose movement to Northern Ireland were technically prohibited by EU law under the Protocol, such as sausages, will now be permitted. Lorries carrying agri-food products will need only a single certificate (plus a description of goods) in place of the many different certificates previously required for each product.
• Individuals sending parcels to Northern Ireland to other individuals will not require customs paperwork, and online businesses sending parcels to individuals will be subject to minimal customs processes.
• An EU limit on the number of reduced and zero rates of VAT that can be applied to certain goods is dis-applied in Northern Ireland. In addition, an exemption has been agreed so that zero rates of VAT on the installation of energy-saving materials in immoveable property, such as heat pumps and solar panels, as implemented in Great Britain can apply there too.
• All medicines placed on the market in Northern Ireland will now be regulated by the UK regulator, the Medicines and Healthcare products Regulatory Agency (MHRA), rather than the EU’s regulator, with all UK-approved medicines available for sale there.
• A new “Stormont Brake” mechanism:
  • 30 Members of the Northern Ireland Assembly from at least two political parties will be able to object to the application of some (but not all) updated or amended EU laws - mainly concerning goods - that would have applied automatically in Northern Ireland under the existing Protocol. This will be the case where they are “significantly different” from existing rules and have a "significant impact specific to everyday life of communities" in a way that is "liable to persist". Other conditions also apply.
  • The Stormont Brake mechanism does not apply to changes or amendments to EU laws on State aid, the single electricity market or most of the EU's customs code.
  • This "Petition of Concern" would then give the UK Government the ability to block the adoption of the updated or amended EU laws in the Joint Committee. If the EU disagrees, there is a process of arbitration which could result in the law being applied in Northern Ireland. The UK Government further proposes (via draft Regulations) that this would only be the case if endorsed by a cross-community vote in the Assembly.
  • There is a separate (and existing) process for the introduction of completely new EU laws, which the UK can already block via the Joint Committee, subject to certain conditions and arbitration.
  • The EU will be able to take “appropriate remedial measures” if Northern Ireland begins to diverge from EU goods rules in a way that impacts their Single Market.
• The circumstances under which the EU can bring action against the UK for subsidies in Northern Ireland under the EU’s State aid rules have been tightened.
• The UK Government has agreed to drop the Northern Ireland Protocol Bill that would have blocked the application of parts of the Protocol in UK law, and the EU has agreed to drop its legal actions against the UK for not implementing the Protocol in full.

What has the reaction been?

Labour, the Scottish National Party and the Liberal Democrats have said they will support the Framework.

The pro-Brexit European Research Group (ERG) of Conservative MPs asked a group of lawyers to examine the Framework, and said that this advice will inform their decision on whether to approve the deal. The lawyers’ assessment was critical of the Framework, with its findings referring to the continuing supremacy of EU law in Northern Ireland and the Stormont brake as “likely to be useless in practice”.

The Northern Ireland political parties Sinn Féin, Alliance, the Social Democratic and Labour Party, and the Ulster Unionists, have all said they broadly support the Framework, but have questioned how the Stormont Brake will operate, and its desirability.

The Democratic Unionist Party (DUP) have previously said they will only support new arrangements for the Protocol if it meets seven tests, including no border in the Irish Sea between Great Britain and Northern Ireland and no checks on goods going in either direction.

DUP leader Sir Jeffrey Donaldson says his party “will not be rushed, will not be pushed into a hasty decision” as to whether the Windsor Framework meets these seven tests. To examine the Windsor Framework, the DUP has established a panel including ex-First Ministers Arlene Foster and Peter Robinson. They are not expected to come to their conclusions until the end of March. In the interim, Sir Jeffrey says DUP MPs will vote against draft Regulations intended to implement the Stormont Brake in domestic law.

What happens next?

Rishi Sunak said that there would be a House of Commons vote on the Framework “at the appropriate time and that vote will be respected” but that it’s important for everyone, particularly the Unionist community, to be given “the time and space they need to consider the detail of the Framework”.

A vote on the Framework as a whole is not required by law, but would demonstrate political support for the agreement. New UK legislation will be required to implement some of the Framework, for example amending the Northern Ireland Act 1998 to implement the “Stormont Brake”.

The Government has announced that it will introduce secondary legislation to implement the Stormont Brake in the form of a Statutory Instrument (SI). A motion to approve the SI will be moved in the House of Commons on Wednesday 22 March, with a 90-minute debate beforehand. The Government has said that this debate and vote on passing the SI will serve as the opportunity for Parliament to show approval for the Framework as a whole.

The EU and UK-EU Joint Committee

The EU will also need to pass into law the proposed regulations in areas like medicines, checks on animals and plants, and medicines, which need to be adopted by the European Parliament and the Council of the EU.

The EU Council also adopted two EU Council Decisions on 21 March 2023:

• To give legal authority to the position of the EU to be taken in the Joint Committee when adopting the Decision and Recommendations that are necessary to give effect to the Windsor Framework.
• To agree changes to the Joint Consultative Working Group’s rules of procedure.

The EU-UK Joint Committee will meet on 24 March 2023 in order to adopt the recommendations and decision that will implement parts of the Framework.