The Windsor Framework - NI Protocol reformed but not abolished
18 March 2023
At the end of February, the British Prime Minister, Rishi Sunak, along with the President of the European Commission, Ursula von der Leyen, unveiled the Windsor Framework, an agreement between the UK and EU aimed at resolving the issues of contention arising from the NI Protocol. The controversy around the NI Protocol had been ongoing since it came into being in 2019. While always problematic for northern unionists it had also become a cause of conflict between the British government and the EU with the Boris Johnson administration threatening to breach international law then introducing a bill that would allow for parts of the NI Protocol to be unilaterally abolished. Following the agreement those threats have been dropped and the bill withdrawn. For its part, the EU has lifted sanctions (such as exclusion from the Horizon research programme) it placed on the UK and also stopped any legal action it had commenced. The stated objective of the Windsor Framework agreement is to resolve the issues around the NI Protocol and allow for the restoration of devolved government in the north of Ireland.
The main thrust of the Windsor Framework is the simplification of the operation of the NI Protocol. Many of the restrictions on goods moving from GB to Northern Ireland have been removed. Whole categories, such as medicines, are exempted. This relaxation is achieved through the creation of so-called red and green lanes by which goods bound only for Northern Ireland are largely unchecked while those continuing into the south and the EU are subject to single market rules and a regulatory regime that includes declarations and inspections. The operation of this system will require close collaboration between the UK and EU in terms of the sharing of information. It also involves a new UK wide labelling system. And most significantly, given the controversy around the Irish Sea border, it will mean the establishment of permanent border control posts at northern ports.
The element of the Windsor Framework that has received the most attention is the so-called “Stormont brake”. This is a mechanism by which the adoption of new single market regulations can be blocked by the Stormont assembly. Key to this is the stipulation that the adoption of any new regulation would require cross community consent; i.e., majority support among both unionist and nationalist representatives. The inference of this, which has been played up by the British government, is that there will be a unionist veto over any change. However, a closer examination of the Stormont brake reveals that this is not the case. First of all, the Assembly does not have the power to overturn existing EU regulations; those will remain in place. Secondly, the threshold for triggering an Assembly vote is very high. It would have to be demonstrated that any new regulation, or amendment of an existing regulation, would have a significant negative impact on the North’s economy or society. Moreover, a cross community vote cannot be triggered for what are described as “trivial reasons”. Even if all these conditions were met, and there was a vote to block a new regulation, it would still not amount to an automatic veto. The British government is only required to take note of such a vote. If it chose to raise a dispute this would be the subject of negotiations within the joint EU-UK committee dealing with post Brexit relations. The Stormont brake is a gesture towards unionists, but much like the border poll provision in the Good Friday Agreement, there is no expectation that it will ever be activated.
Overall, it can be said that the Windsor Framework represents a substantial reform of the NI Protocol. However, these reforms relate only to its operation. The broad framework of the NI Protocol which grants a special trading status to the North, and everything that follows from that, the enforcement of EU laws and the primacy of the European Court of Justice as arbiter, remains in place.
Much of the commentary around the Windsor Framework has centred on whether it is enough for the DUP, in terms of reform of the NI Protocol, to allow the restoration of devolved government in Northern Ireland. There has been extensive analysis of how the Framework matches up to the seven tests that the party set out as the criteria by which it would judge any agreement between the UK and EU. It is generally agreed that while the Windsor Framework goes some way to addressing the DUP’s concerns it still falls short. This was always going to be the case as the DUP tests, which would have effectively abolished the NI Protocol, were never likely to be met. They were formulated in such a way as to guarantee failure and were more about preparing the ground for rejection of any agreement than making a serious assessment.
The DUP’s seven tests, along with the panel it has set up to examine the Windsor Framework, are just a charade. The legal and technical issues being flagged up by the party as problems are not what's driving its opposition to the restoration of the devolved institutions. The actual record of the DUP on the NI Protocol is ambiguous going from a guarded welcome, to begrudging acceptance and only recently to outright opposition. As recently as 2021 the DUP agriculture minister Edwin Poots was lobbying the UK government for parts of the NI Protocol to be retained. When challenged on this he argued that there was nothing wrong with cherry picking. This is hardly the position of a party that believes the NI Protocol is an existential threat to the union. And of course, it isn’t. The NI Protocol doesn’t change the constitutional position of the northern state, nor does it promote the development of an all-Ireland economy.
The reason the NI Protocol has taken on such prominence is because it has become a totem of growing opposition within unionism to the devolved institutions in general and the power sharing Executive in particular. This is why the position of the DUP has shifted over a period of time. The result of the 2022 Assembly election, which saw a big increase in support for the hard-line TUV, confirms this rightwards movement within unionism. While it may not be a majority of unionism it is a big enough portion to hold sway. Even prior to that election no unionist leader would commit themselves, even in principle, to serving in an Executive led by a Sinn Fein First Minister. They are even less likely now when this would be the reality of a restored Executive. While the DUP will not state this openly it will be the primary reason for their rejection of the Windsor Framework. The party’s statements around expert panels and consultation periods are just manoeuvring and public relations. Even if some in the leadership of the DUP were prepared to go along with the Windsor Framework, which would not necessarily require an explicit endorsement, they would face a likely revolt amongst their support base. The extent of this can be gauged from a recent survey which found that almost three quarters of DUP supporters were opposed to the Windsor Framework and that over half were opposed to the return of Stormont. While it may be the case, as commentators claim, that DUP leader Jeffrey Donaldson favours devolution, overriding all of this is the imperative to avoid a major split within unionism.
It is assumed that the DUP is under pressure but that would only be the case if there were negative consequences flowing from a refusal to endorse the Windsor Framework and restore devolved government. There may be a loss of direct powers of patronage but these can be compensated for at other levels of the state such as local councils and in various public bodies. Unionists would be quite comfortable with the version of direct rule that is currently operating in the North. While the prospect of “joint authority” is held up as a threat to the DUP there is no indication that this is on the agenda. Indeed, both the British and Irish governments have ruled this out. Moreover, the British government has said it is prepared to amend the primary legislation underpinning the Good Friday Agreement in order to strengthen the position of unionism. In addition, and while not directly related to the North, the anti-refugee legislation that is being brought forward by the British government threatens to breach or even suspend the European Convention on Human Rights (ECHR), a supposedly essential element of the Good Friday Agreement. Despite the British government driving a coach and horses through the Agreement there is no protest from the representatives of Irish nationalism. The Irish government, along with Sinn Fein and the SDLP, just want the institutions up and running in the North no matter how far these may have departed from the original version.
For the DUP the Windsor Framework agreement is not really about the NI Protocol. This can also be said for the British government. While it hopes the amendment of the NI Protocol gets the devolved institutions up and running, again this is not the primary objective of the agreement. For the British government the overriding strategic aim is to reset relations with the EU and lay the foundation for further agreements and understandings that can undo the damage caused by Brexit. The parlous state of the UK economy, particularly the deterioration in its trading position, makes this task absolutely essential for British capitalism.
The negotiations and agreement on the NI Protocol can be viewed as an introduction to a process that will be much longer and wider in scope. The Windsor Framework will not be held up by opposition from the DUP. While the British government may indulge the DUP, there was never any prospect that the party would exercise a veto. The British PM, Rishi Sunak, has already made it clear that he will move ahead with the Windsor Framework even if the DUP reject it. What is also notable is that the much-speculated revolt by Conservative backbenchers failed to materialise. The agreement even won the praise of prominent Brexiteers such as current NIO minister and one time “hard man of Brexit '' Steve Baker. All of this is evidence, along with opinion polls that show increasing support for re-joining the EU, that the tide is turning on Brexit. While its supporters never admit it, Brexit, as a programme for the revival of British capitalism, has comprehensively failed. However, this does not mean that all its elements are floundering. As mentioned earlier in this article the anti-immigrant sentiment that drove the Leave vote is now in full flow. This illustrates the conflicts between economic and political imperatives that are at the heart of the Brexit debacle. This is especially acute for the Conservatives who need to be responsive to the demands of British businesses for access to the single market and migrant labour but also want to shore up a reactionary support base that is overwhelmingly opposed to any concessions in these areas. What makes it easier for the Tories is the complete capitulation of the British Labour Party under Keir Starmer to Brexit. The party has shifted from opposing Brexit, to mitigating the damage, and now to claiming that it can be made to work. Starmer declared in advance that he would support any agreement between the EU and UK on the NI Protocol. All this has been part of a sharp turn to the right which has seen Labour trying to outflank the Tories on a range of issues, from public spending to immigration.
What’s missing in all of this is an independent voice of the working class. The official leadership of the labour movement, in the form of the trade unions, have the singular position of calling for the restoration of the assembly and Executive. It is their answer to every issue. The clear implication here is that things in the North would be better under devolved institutions. Yet the actual record of the local administration, from a working-class perspective, has been very poor. The dysfunction of Stormont is well known but what is not highlighted so much are the thoroughly reactionary policies that were pursued such as privatisation and welfare reform. The austerity agenda of successive British governments was fully embraced by the local parties. With a new round of austerity already being signalled the character of any restored government in the North is entirely predictable. The reality behind the claim by trade union leaders that Stormont will protect workers is the demand that workers make sacrifices to get Stormont up and running again.
Whether Stormont is restored or not the overriding task for socialist and trade union activists, of creating an all-Ireland independent working-class movement, remains the same. This is the starting point for any progressive shift in politics and society. While it's true that we are nowhere near such a movement coming into existence it would be delusional to believe that such an essential step can be bypassed or substituted for a strategy that revolves around the belief that Stormont, or even the Dáil, can be a vehicle for reforms.