For Rishi Sunak, it was a “decisive breakthrough”. “Together,” the British PM pronounced, though others said there would be no renegotiation and no change, “we have changed the original protocol and are today announcing the new Windsor Framework.”
“The UK found a way to persuade the EU of the moral, political and legal case for a renegotiation,” the Spectator echoed triumphantly, “overturning the significant moral, political and legal impediments that held the EU back from any `renegotiation’. This was due to an intellectual transformation of the understanding of the relationship of the Good Friday agreement and the protocol – one promoted by the UK rather than Ireland.” The UK was, we are to believe, the real champion of the GFA?
Except that there was no “renegotiation”. Had there been one, every EU state would now be embarking on a new process of treaty re-ratification, instead of simply noting minor amendments made to the protocol under its own provisions. A joint committee, including representatives of the UK and EU, is empowered to oversee the protocol implementation and, if necessary to its smooth functioning, amend its provisions. That is, a resolution to the EU Council notes, as long as “such decisions do not amend the essential elements of the [protocol] agreement.”
And, to assist Sunak in maintaining a renegotiation fiction necessary to sell Windsor domestically as a triumph, the Council will agree that “the protocol, as amended by that Joint Committee decision, should now be known as the `Windsor Framework’.“ Old wine in a new bottle.
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In order to preserve the post-Brexit integrity of the European single market, EU negotiators insisted that talks respect the original protocol framework and the Union’s legal order, the ultimate jurisdiction of the European Court of Justice over its internal market. Checks on cross-Irish Sea trade would be essential, whether physical or virtual, to avoid borders on the island of Ireland. All these preconditions remain intact in the new Windsor Framework, made possible by two crucial new elements: a new trust in the UK’s willingness to effectively police a “trusted trader” scheme, and a willingness to hand over internal trade data.
Crucially, the framework gives flesh to means by which the protocol requirement of “dynamic alignment” of the North’s regulatory system with that of the EU is maintained
In essence, the agreed framework tweaks VAT and customs rules; frees up movement from the UK by pets, pills and parcels; acknowledges continuing controls on agri-food products required by Ireland’s status as a single phytosanitary region; and agrees to monitoring by a trusted trader scheme to transform a “green lane” on the Irish Sea into a virtual customs border.
And, crucially, the framework gives flesh to means by which the protocol requirement of “dynamic alignment” of the North’s regulatory system with that of the EU is maintained – the requirement, despised by unionists, that future changes in EU single market rules will be automatically applied to NI products.
Dressed up as one of the most significant element in the new framework is the mechanism for creating a degree – a very small degree – of democratic accountability, the “Stormont Brake”, a process which will allow dynamic alignment to be curtailed “in the most exceptional circumstances and as a last resort” by 30 members of the NI Assembly, from at least two parties, petitioning London to challenge new EU-wide regulations.
The likelihood of the EU trying to introduce such a seriously damaging regulation to its internal market rules is preposterously small
If London accepts the seriousness of the complaint, and it is endorsed by a cross-community majority in the Assembly (ha!), and the dispute is unresolved in talks with the Commission and at independent arbitration, then the UK can reject the new regulation. In the knowledge, however, that the EU can respond with proportionate retaliatory measures.
It’s all most unlikely ever to happen. The likelihood, anyway, of the EU trying to introduce such a seriously damaging regulation to its internal market rules is preposterously small.
In the first two years of Brexit, dynamic alignment has already forged ahead. The EU has used the Joint Committee to add eight and delete two regulations to and from the North’s legal armory.
Those added include rules for monitoring drug precursor trade between the EU and third countries, on marking food products batches, on marketing of fodder plant seed, propagating material for ornamental plants, and vegetable propagating and planting materials, on safeguards for withdrawal of preferences in some EU third country trade agreements, on measures to reduce the environmental impact of plastic products, and to control the import of cultural goods.
The two removed acts concerned CO2 emissions standards for cars and light commercial vehicles.
In addition, EU Acts listed in the annexes to the protocol are routinely repealed, replaced and expire, the result of normal EU legislative processes. Of the 338 EU Acts originally listed in the annexes, 57 had been repealed as of January 2023. And there are more.
Stalling dynamic alignment would hardly appear to be a ditch worth dying in.