The proposed “Windsor Framework” was announced by the UK and EU authorities on 27 February 2023, and heralded as a major breakthrough – one that would answer the Northern Ireland question, hopefully paving the way for the restoration of the Northern Ireland Executive.

While it is still being mulled over by various important parties, and before it goes to a vote in Westminster (and without getting into the more “political” elements); it is useful to consider what the Framework is, what it could do for business in (and with) Northern Ireland, and what role businesses here may have in the future.

What is it?

The Windsor Framework is an agreement reached between the UK and EU and has at its heart three objectives: “(1) Restoring the Smooth Flow of Trade Within the UK Internal Market, (2) Safeguarding Northern Ireland’s place in the Union and (3) Addressing the Democratic Deficit”.

The Framework does not replace the Northern Ireland Protocol – the section of the Brexit Withdrawal Agreement (published right at the end of 2021) which deals with Northern Ireland’s unique geographic and constitutional position. Instead, and as intended to address the “acute political, economic and societal difficulties” caused by the Protocol, the Framework amends the text of the Protocol and is accompanied by legally binding legal changes and unilateral declarations by both UK and the EU.

The Framework will also be enough for the UK to drop its proposed, and controversial, Northern Ireland Protocol Bill (which would have purportedly entitled it to disapply certain elements of the existing Protocol) and consequently for the EU to agree to drop its connected legal proceedings regarding implementation of the Protocol.

What does the Framework do?

The Framework’s contents page lists 16 sub-headings under the three objectives noted above, ranging from Movement of Goods, to Pets to Seeds. The changes that will have the greatest impact and which are being most widely discussed are:

• introduction of red and green lanes for goods arriving in Northern Ireland (separating goods which are at risk of entering the EU Market from those that should remain in Northern Ireland);
• retention (but on a staggered timeline) of associated rules for labelling;
• fewer certification paperwork for agri-food products intended for retail channels;
• simplifying the process of sending parcels (for both businesses and consumers);
• clarification of Subsidy Control rules; and
• amended VAT and duties rules.

The Framework also seeks to deal with resistance to the Protocol’s requirement for Northern Ireland to maintain “dynamic alignment” with some relevant EU laws, by presenting an ability for 30 MLAs (taken from at least two parties) to challenge and propose a veto to new and amended EU laws. This is known as the “Stormont Brake”.

How will business input in the future?

The Stormont Brake is not relevant unless a relatively high number of pre-requisites are met – the extent of which means there is some debate over exactly how likely it is in practice that the relevant criteria permitting “the Brake to be pulled” might be satisfied.

However, one of those pre-requisites which should be welcomed by businesses is the requirement for the MLAs seeking to challenge any new or amended EU rule to be able to demonstrate that they have “taken steps to consult businesses, other traders and civic society affected” by the new rule.

This is an encouraging commitment, with the clear intention that any decision to stop a new EU rule applying in Northern Ireland is taken on the basis of business, rather than political, priorities. This mechanism helps, in principle, give Northern Irish businesses some ability to lobby decision makers should they consider that any new or amended EU rules that would apply to Northern Ireland are likely to have any disproportionately negative impact, particularly with the prospect of GB / NI regulatory divergence in the longer term.

Further, both UK and EU agree to establish engagement with Northern Ireland businesses (and others), at each level of the Withdrawal Agreement’s structures – such engagement will be on a “regular” basis. What this will look like remains to be seen, but again this is a positive chance for productive engagement between business and politics.

Next steps

The proposed changes to the Protocol which would be achieved by the Framework have already been welcomed by major businesses on both sides of the Irish Sea. Although the detail must still be added on many of the ancillary commitments, there does appear to be good opportunity for businesses to make their voices heard on matters of real constitutional and operational significance. In due course, businesses here should be alive to prospects to get involved and engage with matters on which they are the real experts, in particular around future amendments to the relevant legal framework in GB and NI.

In the meantime, the legal instruments that make up and accompany the Framework will go to the UK/EU Joint Committee (expected to be before the end of March), following which enacting-legislation will be produced and voted upon and further accompanying guidance will be produced.

As ever, we will be watching closely.

If you or your business require any assistance in understanding the implication of the new Framework, or anything else, please feel free to reach out to Paul Eastwood or your usual Tughans contact.

Paul Eastwood

Director

Tel: 078 0358 9018

Email: paul.eastwood@tughans.com

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.