The Windsor Framework: A Good Step toward a Healthy EU-UK Relationship
UK prime minister Rishi Sunak and EU Commission president Ursula von der Leyen reached an important agreement on February 27, 2023 to smooth the implementation of customs controls between Great Britain and Northern Ireland, in compliance with the Protocol on Ireland (a cornerstone of Brexit). Although it is still pending ratification by the British Parliament, it shows that Sunak is a pragmatic politician, ready to leave behind confrontation and look forward to a trust-based healthier relationship with the European Union.
The Irish Backstop
It is worth remembering the reason for the Protocol on Ireland and Northern Ireland included in Brexit´s Withdrawal Agreement. The United Kingdom’s exit from the EU single market and customs union required a new physical border to check tariff, fiscal, health, and regulatory divergences in trade flows. Negligible though these divergences might be, the British government made the mere possibility of diverging a matter of life or death. The problem was that United Kingdom’s only land border with the European Union, the one between Northern Ireland and the Republic of Ireland, could not be established for political reasons: the Good Friday Agreement was successful because EU integration removed all physical barriers reminding people from both sides that they were living in different countries.
Brexit made customs controls unavoidable and the United Kingdom demanded full regulatory autonomy, so the only feasible solution was keeping Northern Ireland withing the EU regulatory framework (in a kind of single market for goods only) and move custom controls to the Irish Sea (between Great Britain and Northern Ireland). Boris Johnson signed for this solution (the “Irish backstop”), but right away promised he would never apply it.
In view of the implementation difficulties, in October 2021 the European Commission generously proposed to simplify customs requirements between Great Britain and Northern Ireland. Johnson's government, however, rejected the EU proposal and insisted on renegotiating the entire protocol, suppressing the jurisdiction of the Court of Justice of the EU (CJEU). A UK law was even passed allowing unilateral alteration of the Protocol, in flagrant breach of international treaties.
Renouncing to the CJEU jurisdiction was precisely the only thing the European Union could not grant. Even though there had not been any CJEU interpretation issues since Brexit, the United Kingdom opted to stick to maximalist positions instead of focusing on the real problems of citizens and businesses.
The Content of the Windsor Framework
In view of the evident negative effects of Brexit (United Kingdom shows the lowest growth in Organization for Economic Cooperation and Development in 2023, and investment seems stagnant since the 2016 referendum), Sunak opted for a practical approach, and started a long negotiation with the EU Commission until he reached an agreement.
The Windsor Framework, named with the evident objective of linking it to the Crown (a symbol of bipartisanship), should be understood as an interpretative addendum, which does not change the essence of the protocol. The following elements can be highlighted:
First, the creation a two-lane system for exports between Great Britain and Northern Ireland. Goods destined for Northern Ireland (“green lane”) will be free of controls, whereas those destined for the single market (“red lane”) will be subject to the usual customs checks. Fraud in the green lane will be avoided by using a list of trusted exporters, special labelling, and an information exchange mechanism with the EU Commission.
Second, the so-called Stormont brake, an addendum to allow the United Kingdom, in exceptional circumstances and by request of 30 members from at least two parties in the Northern Ireland legislative assembly, to oppose European regulatory changes that have “a significant impact to everyday life”. The petition will open a 14-day consultation period after which, if no agreement is reached, a majority vote (of both unionists and nationalists) in the assembly would suspend the application of the rule.
Third, the end of the legal battle. The United Kingdom will repeal the Internal Market Bill, which allowed United Kingdom’s unilaterally alteration of the Irish Protocol. The Commission, for its part, will cease proceedings against the United Kingdom for breach of the Agreement.
Fourth, some administrative measures to make life easier for citizens, such as the application of British value-added tax (VAT) and excise duties to alcoholic beverages intended for immediate consumption in Northern Ireland, as well as for specific non-movable goods (such as heat pumps or solar panels); the possibility of introducing additional reduced or zero VAT rates; the validity of the UK regulator’s approval for drugs destined to Northern Ireland; permission of entry for pets without veterinary certificate (if they carry a chip); the validity of British certificates for certain agricultural plants and machinery; the exemption from customs declaration for postal items (provided that courier companies share data with the European Union from 2024); or the exemption of controls for some meat foods (such as the famous frozen sausages).
Fifth, a relaxation of the interpretation of the concept of state aid to Northern Ireland for the purposes of the protocol.
Moreover, the agreement will allow the United Kingdom to be associated to the Horizon Research program (its access was recently blocked, causing numerous problems for UK universities and researchers).
It should be noted that the idea of two lanes was accepted by the commission based on two factors: the empirical evidence of lack of trade deviation, and the trust in a credible exchange of information system. It shows, therefore, that the commission is ready to make concessions when negotiations are held in good faith.
As for the Stormont veto, i.e., the possibility of not applying (rather than vetoing) new EU regulations, it is just the acceptance that Northern Ireland cannot be forced to take on EU legislation against the will of the majority. This is not new, though; the European Economic Area (EEA) agreement also allows for member countries (Norway, Iceland, and Lichtenstein) a “right of reservation” that can prevent the application of new EU regulations that may cause problems. Brussels is therefore accepting the role of the signing parties of the Good Friday Agreement, and not the primacy of British legislation over EU legislation. The CJEU will be, in all cases, the ultimate interpreter of EU legislation. Additionally, the European Union reserves its right to apply “appropriate remedial measures” if regulatory divergences with Northern Ireland become considerable.
The Windsor Framework is a positive agreement for both parties. The European Union assumes a certain risk derived of fewer controls, but the United Kingdom admits the ultimate jurisdiction of the CJEU. The administrative simplifications just stem from the commission’s proposal of October 2021. The agreement is not so much a legal revolution as a great leap in terms of trust and cooperation—the proof that trust can work miracles.
The agreement will be put to vote in the UK parliament, and success is not guaranteed: Theresa May also signed a very reasonable protocol (which included a customs union that avoided tariff controls and cumbersome rules of origin) but failed to convince the unionists and her party colleagues within the European Research Group to support it. Boris Johnson, eager to return to the political arena, seems ready to minimize Sunak’s success.
However, there are several elements that favor a ratification, including the fact that the UK population is now much more aware of the costs of Brexit (so political profit from radical positions is lower), the pressure from the academic and scientific community (as rejecting the agreement would block access to the Horizon program), and also the U.S. president Biden’s reluctance to attend the celebration of the 25th anniversary of the Good Friday Agreement if no EU-UK agreement was reached.
The latter is probably a big incentive for the UK government to end with the EU quarrel, given President Biden’s firm position in this regard and the United Kingdom’s interest in negotiating a free trade agreement with the United States that could prove the benefits of Brexit’s freedom to pursue new trade deals. The likelihood of a quick start in negotiations seems, however, quite remote.
Bottomline, the conservative party is facing the usual dilemma: looking ahead and minimizing the costs of Brexit or insisting on extracting political gains from constant confrontation with the European Union. In the current geopolitical landscape, it would be wise for the United Kingdom to focus its anger toward real enemies, and not toward reliable allies like the European Union.
Federico Steinberg is visiting fellow with the Europe, Russia, and Eurasia Program at the Center for Strategic and International Studies in Washington, D.C and a senior analyst at the Royal Elcano Institute. Enrique Feás is a senior analyst at the Royal Elcano Institute.