The Windsor Framework: A New Chapter

On Monday, 27 February 2023, the UK Government and the European Commission jointly announced the publication of the Windsor Framework. The new agreement is an amendment of the original Protocol on Ireland/Northern Ireland (NIP) that forms part of the EU-UK Trade and Cooperation Agreement (TCA), the DUP’s opposition to which led the party to withdraw from the Stormont Assembly in February 2022, thus collapsing the powersharing Executive.  

The Windsor Framework aims to facilitate trade between Great Britain and Northern Ireland, while maintaining Northern Ireland’s access to the European Single Market. The Framework seeks to achieve this through a system of red lanes and green lanes. Under this arrangement, goods in Great Britain destined market in Northern Ireland will travel via so-called green lanes, which require fewer checks and minimal paperwork, while goods travelling from Great Britain into the European Union will travel via red lanes, where they will remain subject to EU checks. According to UK Prime Minister, Rishi Sunak, this unique trading arrangement has the potential to make Northern Ireland “the world’s most exciting economic zone”.[1]

On Wednesday, 22 March 2023, the Windsor Framework overcame its first major hurdle, with the ‘Stormont Brake’ element of the agreement passing a vote in the House of Commons by 515 votes to 29. Under the Stormont Brake mechanism, any 30 MLAs (Members of the Northern Ireland Legislative Assembly) can object to the adoption of changes to EU laws applying in Northern Ireland. Two days later, on 24 March, the Framework was formally adopted into law by both the UK and the EU. The Windsor Framework involves compromise and some give-and-take for both the UK Government and the European Union. The deal safeguards the European Single Market, while allowing Rishi Sunak to claim that there is no longer a border in the Irish Sea. Meanwhile, the EU moved significantly in accepting reduced checks on agrifood products travelling between Great Britain and Northern Ireland, while the UK Government committed to completing border control posts at Northern Ireland ports to ensure that checks on animal and food products could be carried out according to EU standards.

The Stormont Brake

In order for the Northern Ireland Assembly to invoke the “Stormont Brake”, strict criteria have to be met. The MLAs seeking to pull the brake must show that there is something “significantly different” about a new EU law in its content or scope compared to what had applied previously, and that the rule has a “significant impact specific to everyday life that is liable to persist.”[2] The Stormont Brake is intended to be used as an exceptional measure of last resort, yet the precise circumstances under which it could be invoked are unclear. In addition, Catherine Barnard, Professor of EU law at the University of Cambridge, says regarding the Stormont Brake that, “… if you look under the bonnet the conditions for its use are so strict it makes it virtually unusable.”[3]

Secretary of State for Northern Ireland, Chris Heaton-Harris, has indicated that the Stormont Brake will operate in a similar fashion to the Northern Ireland Assembly’s petition of concern.[4] Under the petition of concern, a group of at least 30 MLAs can petition the Assembly  to require that a decision be passed with “cross-community support”, meaning the support of a majority of designated unionist MLAs and a majority of designated nationalist MLAs, rather than by a simple majority. However, the UK Government will have the authority to overturn any invocation of the Stormont Brake in cases where the criteria for its use are not deemed to have been met, although Mr Heaton-Harris has said that the Government will be “bound” to veto new EU laws if 30 MLAs in the Assembly ask them to do so.[5]

The Stormont Brake is the aspect of the Windsor Framework that has attracted the most scrutiny among both EU Member States and Northern Ireland politicians. In Brussels,  diplomats from EU Member States have expressed concern that the Stormont Brake dilutes the role of the ECJ and that the mechanism could be replicated in trade agreements with other non-EU countries.[6] Meanwhile, in Belfast,  Alliance Party leader, Naomi Long, called for, “clarity on the operation of the Stormont Brake, to ensure that it cannot be abused to cause future instability” and for “reform of the institutions to ensure that all MLAs votes have equal value and… [to] end ransom politics for good.” [7] Ms Long is concerned that the Stormont Brake could be abused in a similar way to the petition of concern, giving one party or one of the two main political designations in Northern Ireland (nationalists and unionists) the power to prevent the passage of legislation or to collapse the Assembly.

Tony Connelly, Europe Editor at RTÉ News, reports that the Stormont Brake is essentially an expansion of a provision that was already in the original Protocol. Under Article 13.4 of the Protocol,  the UK could already challenge the addition of any new regulation, and the new regulation would only be applied in Northern Ireland by mutual consent, through the EU-UK Joint Committee.[8] Ultimately, the Stormont Brake now also enables the UK to challenge the amendment of existing EU laws applying in Northern Ireland when 30 MLAs use the petition of concern to ask the UK to do so.

The DUP’s Position

The Stormont Brake has been praised for addressing the “democratic deficit” of the original Protocol by allowing Northern Irish lawmakers to have a say over the application of EU law in Northern Ireland.[9] Crucially, the mechanism itself incentivises a return to powersharing, as the Brake can only be used when the Northern Ireland Assembly is in operation.[10] Despite their misgivings over the Stormont Brake, both the SDLP and the Alliance Party voted in favour of it in the House of Commons. Sinn Féin and the UUP have also cautiously welcomed the Framework. All eyes, then, were on the DUP in the days following the announcement of the terms of the Framework.

On 20 March 2023, DUP Leader, Sir Jeffrey Donaldson, announced that his party had unanimously decided to vote against the Stormont Brake element of the Framework in the House of Commons. Sir Jeffrey stated regarding the Windsor Framework that “does not deal with some of the fundamental problems at the heart of our current difficulties. There remain key areas of concern which require further clarification, reworking and change as well as seeing further legal text.”[11]

The DUP’s rejection of the Framework came before the final report of an eight-person panel established by Sir Jeffrey to consult business groups and community leaders on whether to accept the Windsor Framework. The composition of the panel, which is largely made up of senior DUP figures from the moderate wing of the party – including former First Ministers, Peter Robinson and Dame Arlene Foster – had been interpreted as a sign that Sir Jeffrey was inclined to accept the agreement himself. A DUP source told The Times, “Peter [Robinson] is hugely respected in the party and you don’t have to read too much between the lines to see which way he is moving. The fact that he’s on the panel suggests Jeffrey is looking for cover to accept the deal.”[12]

One week before the DUP’s decision to reject the Framework was made public, the Belfast Telegraph published a poll by LucidTalk which revealed that 73% of DUP voters would vote against the Windsor Framework in a referendum.[13] This figure, along with the DUP’s view that, “The brake does not deal with the fundamental issue, which is the imposition of EU law by the protocol”[14], may at least partly explain the party’s decision to vote against the deal.

Complicating matters for Sir Jeffrey, however, is a more recent poll from the University of Liverpool’s Institute of Irish Studies[15] (published on 22 March 2023, but carried out prior to the DUP’s decision to reject the Windsor Framework) which shows that 45% of Northern Irish voters support the new agreement, with just 16.9% opposed. 19.1% of nationalists were opposed to the deal compared to 15.7% of unionists, indicating that the Framework can be perceived as an achievement for unionism. The poll also found that 56.2% of unionists believe the Windsor Framework removed many negative consequences of the Protocol, compared to only 54.9% of nationalists.

A key question that remains unanswered in the wake of the entry into law of the Windsor Framework is whether the DUP will opt to restore Northern Ireland’s governing institutions. The party’s announcement rejecting the Framework has largely extinguished hopes that powersharing will be restored in time for the 25^th anniversary of the Good Friday Agreement in April 2023. However, polling reveals softening attitudes in the unionist community to the restoration of powersharing. Only 54% of unionist respondents in the Belfast Telegraph’s LucidTalk poll said that the DUP should continue boycotting Stormont until changes are made to the Framework, down from 66% in a similar poll conducted by LucidTalk 6 weeks earlier. In the University of Liverpool’s polling, almost 50% of DUP voters, and 44.9% of all unionists, said the Framework meant that the DUP should return to Stormont, while only 13.8% of DUP voters said the DUP should not revive Stormont. In a similar vein, a survey from Queen’s University Belfast (carried out before the announcement of the Windsor Framework) found that DUP and UUP voters value the restoration of powersharing more than they do scrapping the Protocol.[16] Only among TUV voters was there net support for scrapping the Protocol even if it means risking the functioning of the Northern Ireland Assembly and Executive.

UK-EU Relations

The DUP’s position on the Windsor Framework has left the party politically isolated, save for some support from the TUV[17] and the high-profile loyalist activist, Jamie Bryson[18]. It is also likely that the DUP’s calls for further change will fall on deaf ears in Westminster, as the Framework appears to have marked the beginning of a warmer chapter in EU-UK relations. Russia’s invasion of Ukraine in 2022 fostered a desire among officials in both Brussels and London to resolve the outstanding issues with the Protocol, as both sides were keen to avoid a post-Brexit trade war at a time when kinetic warfare had returned to European soil.

Moreover, Prime Minister Rishi Sunak appears to enjoy a noticeably better relationship with European Commission President, Ursula von der Leyen, than his three predecessors did. The UK Foreign Secretary, James Cleverly, and Commission Vice-President, Maroš Šefčovič, also have a good working relationship, having previously come to a significant agreement on data access in January 2023. Both the UK Government and the European Commission stuck to the same message in press briefings throughout the latest round of negotiations, and both sides appear to have been committed to finding practical solutions to the impasse regarding the Northern Ireland Protocol.. The sight of Mssrs Cleverly and Šefčovič shaking hands and signing off the Windsor Framework side by side further indicates that this agreement represents a new beginning in UK-EU relations.

Rishi Sunak has indicated that he wants to continue working with the EU to find solutions to other issues facing the UK, notably, for example, regarding small boat migration. In the context of better EU-UK relations, it is unsurprising that the UK has reiterated to the DUP that it will not seek to renegotiate any aspect of the Windsor Framework.[19] With the EU and the UK now looking forward to better relations, and with the majority of Northern Ireland’s political parties focusing on restoring Stormont and the forthcoming 25^th Anniversary of the Good Friday Agreement, the DUP’s political isolation is now clear. Brexit is finally “done” in the eyes of many, and the desire within the political establishments across these islands to move on to other issues is clear.