The Windsor framework: oven-ready fudge

Mar 4, 2023
Piece of European Union Cake.

More than three years after Boris Johnson got Brexit done with his ‘excellent’ and ‘oven-ready’ deal, his second successor Rishi Sunak may have actually baked it, but only after changing the recipe from cake to fudge. But is there enough fudge to go around?

In my previous article, I examined the background to the Windsor Framework (WF), the political agreement between the United Kingdom and the European Union to resolve their differences over the Northern Ireland Protocol (NIP). In this article, I will describe what is in the WF and discuss whether it is sufficient to satisfy the NI unionist community and achieve Sunak’s twin goals of improving relations with the EU and restoring devolved government in NI.

The terms of the WF are contained in a set of complex documents carefully crafted to choreograph the legal implementation of the in-principle political agreement. The WF covers three areas:

(1) the movement of goods from GB to NI;

(2) the status of NI regarding VAT, excise, and domestic subsidies; and

(3) the future governance of the NIP.

The first element adopts a two-tiered trading system, the so-called green and red lanes. Goods intended for final consumption or final use solely within NI will be exempt from regulatory and customs checks on entering NI, while goods intended for the republic or the rest of the EU will be subject to the usual third-country checks.

Firms registered under the trusted trader scheme will be able to use the green lane by providing standard commercial data regarding the goods being shipped to NI. Certain sensitive goods, such as agri-food, do not qualify for the green lane, while medicines, pets, and personal parcels will be exempt from the red lane’s extra paperwork.

The second element means that certain EU VAT, excise, and state-aid rules will no longer apply in NI. Although a technical aspect of the deal, it has political resonance as the divergent tax and subsidy regimes between NI and GB have highlighted NI’s difference from the rest of the UK – a sore point with unionists.

The third element is even more politically sensitive as it addresses what has been criticised as the democratic deficit of NI’s subjection to rules made by EU institutions on which it has no representation and where disputes are adjudicated by a foreign court, the European Court of Justice. The WF introduces the so-call ‘Stormont brake’ which empowers the UK in certain circumstances to disallow new EU rules on the petition of 30 members of the NI Assembly without ECJ oversight. However, the WF otherwise maintains the role of the ECJ.

For two years the dispute concerning the NIP has adversely affected relations between the EU and the UK and has infected politics in NI to the extent that devolved government there has collapsed. The dispute involves two kinds of issues: practical and constitutional.

The first kind relates to the difficulties experienced by GB suppliers shipping goods to NI, particularly with regard to the amount of paperwork involved. In this regard, the WF is a vast improvement and seems to have resolved this issue to the satisfaction of most interested parties. The second kind is not so readily soluble.

The constitutional issue relates to NI’s position in the UK, which NI unionists consider of overriding concern. Strong support in the unionist community for the Democratic Unionist Party’s boycott of devolved government indicates that most unionists are prepared to tolerate NI’s worsening crises in health care and cost-of-living until the issue is resolved to their satisfaction. While the British government is keen to see devolved government restored in NI it does not share NI unionists’ visceral concerns regarding the issue.

So far, Sunak-aligned Brexiters – including key Johnson supporters – have given the nod to the deal, while a threatened revolt by ultra-Brexiters has not materialised, even though the deal includes ditching their hobbyhorse, the Northern Ireland Protocol Bill designed to empower UK ministers to unilaterally revoke parts of the NIP. Elements within unionism also seem ready to endorse the WF. But the big question is what will the DUP do? While legally their approval is not required for the WF to take effect, politically it is momentous as it would help draw a line under the recent fractious past.

As I observed in my previous article, many an intractable problem in NI politics has been resolved by a fudge. And the WF has a strong whiff of fudge about it, judging by the British government’s effusive rhetoric unmatched by the legal text. The government speaks of the ‘old Protocol’, as if there is a new protocol, even though amendments to the NIP’s text are minimal. The government declares that the ‘Stormont brake’ gives NI control over future EU laws, while the WF describes it as an ‘emergency brake mechanism’ to be applied ‘in the most exceptional circumstances and as a last resort’. The government boasts that the WF ‘removes 1700 pages of EU law’, leading one wag to observe, ‘Should that impress somehow? Still MILLIONS of pages apply!’.

In 2021 the DUP set out its seven tests for a satisfactory outcome. Unfortunately, its requirements were fairly specific, limiting its wriggle-room. According to the Belfast Telegraph’s NI editor Sam McBride, on a strict analysis the WF meets only two of those tests, raising the question whether enough fudge has been baked.

The problem for the DUP is that if it endorses the WF it risks losing members and voters to the hardline TUV. A mass exodus could ironically see the DUP suffer the same fate as the Ulster Unionist Party, whose position as unionism’s main party was usurped by the DUP after the UUP pragmatically signed up to the Belfast Good Friday Agreement in 1998.

The complexity of the WF gives the DUP’s leadership time to study the deal and take the unionist electorate’s pulse before announcing its position. A decision by the DUP to endorse the WF would mean that devolved government could resume in NI, enabling legislative and executive action to address long-neglected problems. But that would also mean a Sinn Féin First Minister, a prospect many unionists find abhorrent.

But rejection of the WF and the party’s continued boycott of the devolved institutions could do untold damage to the union itself. In the short term, it could lead to direct rule from London with input from Dublin and, in the long term, increasing support for a united Ireland as the only means of fixing NI’s broken system.

In the meantime, Rishi Sunak can take some pleasure, and well-deserved credit, for steering the UK back onto a more sensible path to improved relations with the EU, Britain’s largest and most important trading partner, and with Ireland, its closest neighbour. Restoration of devolved government in NI would be icing on the fudge.

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