Colin Murray, Professor of Law, Newcastle Law School

Photo credit: en:User:Dom0803, via Wikimedia Commons

The opportunity to finalize the Windsor Framework and ensure its acceptance was limited. The challenging task of establishing trade rules for goods moving between Northern Ireland and the rest of the UK had been largely settled almost a year prior. The objective was to minimize trade friction within the UK while upholding the EU Single Market. However, this agreement did not satisfy the Democratic Unionist Party (DUP), who continued their boycott of the Northern Ireland Assembly.

Consequently, the UK Government faced the challenge of appeasing multiple parties. They needed to convince the DUP that the post-Brexit trade arrangements for Northern Ireland wouldn’t threaten its position within the UK. This involved making further concessions to the DUP to secure the deal, without jeopardizing the access of Northern Ireland goods to the EU single market, a key aspect of the revised Protocol. Adding to this delicate balancing act was pressure from staunch Brexit supporters within Rishi Sunak’s own party. These individuals were wary of any post-Brexit deal that might increase alignment between UK and EU law, an idea prominently (and unhelpfully) highlighted in the Telegraph.

Sunak’s strategy for navigating this complex situation involved maximizing the publicity surrounding minimal concrete announcements (a tactic reminiscent of the “Yes, Prime Minister” approach of using dramatic presentation to downplay policy substance). The updated Command Paper is more than double the length of the February 2023 Windsor Framework Command Paper and emphasizes its own importance (variations of “important” appear over 50 times, complemented by nearly 30 uses of “significant” and its derivatives). In a nod to the resonance of shipbuilding imagery in Northern Ireland, commitments within the document are described as “copper-fastened” on five separate occasions.

Announcing the new agreement in Parliament, the Northern Ireland Secretary emphasized the Conservative Party’s commitment to the Union. One might be forgiven for thinking he hadn’t actually read the document, given its repeated criticism of the Conservative’s own record in office. The Command Paper argues that the failure to address Unionist concerns during Brexit negotiations had “undermined economic and political stability in Northern Ireland” (para 16) and laments that “The decision of the then Government to drop UK Internal Market Act clauses that would have protected NI-GB trade meant that unfettered access was placed in legal jeopardy” (para 27). One wonders if Rishi Sunak could identify the Chancellor of the Exchequer at the time of that decision.

The DUP’s anger over the Conservatives’ perceived undermining of their position meant that addressing these concerns, even while deflecting blame onto “the then Government,” became crucial for the deal’s success. Perhaps more striking are the subtle shifts in tone. There are frequent references to the “sense” or “perception” of a threatened Union. This allows Sunak’s government to claim they are addressing DUP concerns without fully acknowledging or agreeing with them.

The most practically significant parts of the Command Paper relate to the expansion and renaming of the “green lane.” This system minimizes checks on goods moving from Great Britain to Northern Ireland that are deemed unlikely to enter the EU. Risk assessment, based on real-time trade data shared with the EU, determines these minimal checks. It is important to note that these changes were largely anticipated in the Windsor Framework, which already incorporated data sharing and risk management processes. Less than a year ago, it was acknowledged that “[t]hese protections are also not static, with specific recognition in the agreement of the need to monitor, and as necessary adapt to, other changes in the future” (Windsor Framework Command Paper, 2023, para 50). The rebranded internal market lane’s pledged operational status of “as soon as possible” highlights the need for the EU to accept the effectiveness of these processes in meeting the UK’s obligations.

Along with these changes comes an agreement with the EU, including a draft legal text, that, once finalized at the next Joint Committee meeting, will grant businesses in Northern Ireland full access to goods imported under the UK’s post-Brexit trade agreements. While hill farmers in Tyrone might not be thrilled about competing directly with New Zealand lamb, this does address a complaint that Northern Ireland’s post-Brexit trading rules are distinct from (and some argue disadvantageous to) those applied to the rest of the UK.

The DUP’s Gavin Robinson emphasized this change:

“We were told that there would be no legal change to the Windsor framework or the EU text, yet—this was part of the process of ensuring trust and commitment—colleagues will have noticed the publication just yesterday of more than 60 pages of legislative changes to text on the European perspective”

While it’s true that Joint Committee decisions hold the same legal weight as Withdrawal Agreement provisions, this is better understood as an implementation of the Windsor Framework, not a modification of its core text. The Windsor Framework Command Paper clearly stated this development was a priority for both the UK and the EU (see para 15), but its complexity has delayed its realization. As the new Command Paper notes, “There is always the potential for issues to emerge, and for challenges to need to be addressed. That capacity for ongoing dialogue, and for further development as may be required, is acknowledged in the Windsor Framework and its accompanying political declaration” (para 35). It is premature to declare Brexit finalized.

One key takeaway, consistent from the Windsor Framework to the new Command Paper, is the UK Government’s focus on trade rules rather than goods production. The DUP’s Carla Lockhart directly questioned Chris Heaton-Harris in the Commons: “Will the Secretary of State therefore confirm whether Northern Ireland still remains under the EU’s single market laws for the production of food and agrifood?” The Secretary of State curtly responded, “May I recommend that she re-reads the Windsor framework and indeed the Command Paper?” Anyone rereading these documents will find little addressing goods production. The UK Government might be better served by acknowledging that their efforts have concentrated on securing dual market access for Northern Ireland goods, not on altering the Protocol’s existing rules for goods production.

In places, the UK Government’s language becomes quite forceful when emphasizing the limitations of EU law’s application in Northern Ireland post-Brexit. For example, the paper states, “The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it” (para 46). This appears primarily for the benefit of their own MPs, as the argument centers on the Windsor Framework’s supposed lack of impact on the Rwanda policy.

This is a strange digression in a document about trade and Northern Ireland and attempts to downplay any broader significance to the “non-diminution” of rights commitment under Article 2. However, this non-diminution commitment encompasses elements of EU law, such as the Trafficking Directive, meaning different rights protections apply in Northern Ireland compared to the rest of the UK. Unsurprisingly, the Command Paper avoids mentioning the Northern Ireland Human Rights Commission’s current litigation challenging the Illegal Migration Act 2023 for alleged breaches of Article 2.

When discussing new legislative safeguards for Northern Ireland’s place in the Union, the document resorts to legal sleight of hand. Regarding the UK Supreme Court’s Allister judgment, the Command Paper stresses the full sovereignty of the UK Parliament and its “taking back control” post-Brexit (“Importantly, the Supreme Court importantly recognised the UK’s sovereignty, exercised through Parliament”, at para 51, a point apparently worth emphasizing twice). However, mere pages after this reminder that, according to this government, nothing in the UK Constitution is “permanent or irreversible,” come supposed guarantees of Northern Ireland’s place within the Union.

The most substantial of these come as statutory instruments (the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, the Windsor Framework (Internal Market and Unfettered Access) Regulations 2024, and the Windsor Framework (Marking of Retail Goods) Regulations 2024), enacted under the European Union Withdrawal Act. These instruments allow for broad changes to existing primary legislation, including the Act itself. This allows for quick implementation of these deal components and the restoration of Stormont. Of course, it also allows for the entire process to proceed with minimal parliamentary scrutiny.

The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 begins by amending section 38 of the European Union (Withdrawal Agreement) Act 2020, stating that the Windsor Framework operates without impacting the “constitutional status of Northern Ireland as part of the United Kingdom”. This is constitutionally redundant. As the legislation implements an international agreement, it must be interpreted within that context. Furthermore, Article 1 of the Northern Ireland Protocol, as amended by the Windsor Framework, already affirms that it operates “without prejudice” to Northern Ireland’s constitutional status.

This Statutory Instrument then takes an interesting turn, inserting section 38A into the 2020 Act. This new section aims to prohibit any future UK Government from ratifying agreements with the European Union “that would create a new regulatory border between Great Britain and Northern Ireland”. Two points can be made about this pledge. First, it is a case of closing the barn door after the horse has bolted. The Windsor Framework already contains a mechanism for applying new and revised EU law relating to trade in goods to Northern Ireland, subject to the Stormont veto (which UK Governments can ultimately override). A new agreement is unnecessary - a process for responding to changes in EU law already exists within the current framework, rendering this new restriction irrelevant. Second, placing significant weight on this pledge ignores the UK Government’s previous pronouncements on parliamentary sovereignty. This commitment is a gimmick, not unlike David Cameron’s statutory “tax lock” promise.

The Statutory Instrument then proposes amending section 7A of the European Union (Withdrawal) Act 2018, the closest this process comes to a genuinely significant change. This provision is the link enabling EU law to have legal effect within the domestic legal order by giving effect to the Withdrawal Agreement (including the Protocol). Much has been made of this amendment as ending the “automatic” application of EU law in Northern Ireland. However, this interpretation is inaccurate. A substantial body of EU rules applies because of the Withdrawal Agreement, though amending these rules or adding new EU measures is, under the Windsor Framework, subject to the Stormont Brake.

This new provision simply clarifies that existing reality within the statute. While potentially clarifying, it’s important to remember that this statute implements an international agreement. The understanding has always been that section 7A operates in a way that considers the Stormont Brake since its inception. It is crucial to explicitly note that the requirement for Northern Ireland law to automatically reflect changes in equality directives listed in Annex 1 of the Protocol, as modified by the Windsor Framework, remains fully in effect, as it is not subject to the Stormont Brake.

The Statutory Instrument then amends the 2018 Act, requiring a ministerial statement to Parliament outlining whether a bill impacts trade between Northern Ireland and the rest of the UK. This has been compared to the Human Rights Act process, which mandates ministerial statements on new legislation’s human rights compliance. There is irony in this government adopting and repurposing such a provision. In this case, however, the assessment isn’t required for every bill but only when ministers deem it necessary. This leaves ample room for this element to be overlooked, and its inclusion (or lack thereof) has no legal bearing on a statute’s operation. These ministerial statements will quickly fade into background noise.

The final legislative reform addressed here has also generated considerable discussion: the UK Government’s promise to remove any duty to show “due regard” to the all-island economy from the statute book. This delves into the intricacies of Brexit. When Theresa May struggled to pass the Withdrawal Agreement legislation, she conceded to the Patten amendment, which became section 10 of the European Union (Withdrawal) Act 2018. This amendment aimed to prevent ministers from using the Act’s broad delegated legislation powers to disregard the UK’s commitments as outlined in the 2017 Joint Report. It required ministers to show “due regard” to maintaining regulatory alignment in support of the “all-island economy” when exercising these powers.

This phrase is a particular irritant for Unionists, and the Command Paper expounds on the dangers of “the divisive and misguided political notion of the ‘all-island economy’” (para 71). However, it’s a stretch to claim it continues to influence government policy. For one, new powers to implement the Protocol were established in the 2020 Act, and it’s debatable whether the constraints imposed on the original 2018 Act powers even apply to them. Secondly, the commitment in paragraph 49 of the 2017 Joint Report, read in context, pertains to the backstop. Circumstances have changed significantly since then; it doesn’t apply when interpreting the UK’s subsequent (and separate) obligations. At best, this is a cosmetic removal of an obsolete provision from the statute book.

Despite the attention given to minor or inconsequential points, the Command Paper leaves significant issues unresolved. Paragraph 121 makes an interesting commitment:

“The Government can also confirm that there will be no Border Control Post at Cairnryan. While goods that do not qualify for unfettered access to the UK’s internal market - such as goods moving from Ireland via Northern Ireland - will need to comply with the formalities required of any other third country goods movements, we will develop an approach to checks and formalities on those goods that does not pose any risk to the free and unfettered movement of qualifying Northern Ireland goods.”

However, this commitment glosses over a persistent problem: the UK Government still hasn’t finalized its definition of Qualifying Northern Ireland Goods (despite months of discussion about expanding the definition).

With the Border Target Operating Model now implemented in Great Britain, there’s still no clarity on how the government will differentiate between goods shipments moving from Northern Ireland to Great Britain that qualify for unfettered access and those requiring checks. Addressing this issue without some assessment of whether goods meet the criteria will be difficult. The Paper’s failure to address this in detail suggests the UK’s potential approach might prove unpalatable to Unionists.

The final thirty pages of the Command Paper consist of supplementary material. Annex 1, for example, delves into the history of trade barriers that have existed since the Acts of Union and the creation of Northern Ireland. This section serves as a rebuttal to those who claim that the “Acts of Union are the Union” or that Article VI must be “restored” or “fulfilled”. It highlights the UK’s incomplete removal of trade barriers when Ireland joined the Union and how subsequent legislation has impacted trade.

However, it also exposes a missed opportunity. These facts have been known, and discussed, for years. Yet, successive UK Governments, for their own purposes, have cultivated a misleading impression of the Union’s effectiveness in eliminating trade barriers. The Johnson Government, which frequently touted “the provisions of the Acts of Union playing a key role in keeping markets open” (Internal Market White Paper, 2020, para 63), would not have produced this summary. Instead, it represents a belated attempt to revise the narrative. It is also a rushed effort, with large sections seemingly lifted from Professor Henry Patterson’s analysis of trade within the UK since the Acts of Union, published in the Belfast Newsletter earlier this week.

No such package would be complete without reviving some previous promises. The Castlereagh Foundation was announced in the New Decade, New Approach deal (para 26) to “support academic research through Universities and other partners to explore identity and the shifting patterns of social identity in Northern Ireland”. The fact that Castlereagh’s biographer, John Bew, has outlasted many special advisers to recent UK Prime Ministers is likely not a coincidence. The Castlereagh Foundation, once again, is promised, even guaranteed, in Annex 2. Given the Paper’s overall tone, the inclusion of reheated promises was perhaps unavoidable. Still, it highlights how the UK Government’s purported commitments to Northern Ireland tend to wax and wane depending on the severity of the current crisis. One wonders what Shelley might say of the whole affair; very smooth, yet grim.

This analysis might give the impression that these new developments are too insignificant to warrant Jeffrey Donaldson’s return to power-sharing. However, this is only because the Windsor Framework had already done the heavy lifting in terms of mitigation. The most substantial aspects of these new changes represent a continuation of developments explicitly outlined in the Windsor Framework. The remaining elements are largely cosmetic and could have been asserted months ago.

The most frustrating aspect of this whole situation is the year lost in Northern Ireland’s governance. A year in which Northern Ireland’s politicians could have been governing in the best interests of their constituents and addressing the cost of living crisis. While the finalization of needs-based funding arrangements didn’t need to be entangled with the Windsor Framework, the parties returning to power-sharing could hardly contemplate effective governance without addressing the unsustainable pressure on Northern Ireland’s finances.

The UK Government achieved a workable compromise with the EU in the Windsor Framework. These new arrangements largely stem from that deal. Had Sunak been less concerned with appeasing his predecessors, he could have involved the Northern Ireland parties more directly in the Windsor Framework negotiations, potentially achieving a first-time resolution and avoiding the need to manufacture this second deal.