Colin Murray,
Professor of Law, Newcastle Law School
Photo credit: en:User:Dom0803,
via Wikimedia
Commons
The landing space in which to do
a deal on the Windsor Framework and make it stick, second time round, was
remarkably small. The hard work of agreeing with the EU an approach to the
rules covering trade in goods involving Northern Ireland which would produce as
little friction as possible between different parts of the UK whilst
simultaneously safeguarding the EU Single Market had been done almost 12 months
ago. This, however, had not brought an end to the Democratic Unionist Party’s
(DUP’s) boycott of the Northern Ireland Assembly.
This meant that the UK Government
had appease multiple parties as it tried to persuade the DUP that the special
post-Brexit trading arrangements for Northern Ireland are not a threat to its
place in the UK. It had to be seen to provide further concessions to the DUP to
finally get the deal over the line, while simultaneously not doing anything
that could be regarded as threatening to the EU single market access for Northern
Ireland goods provided by the reworked Protocol. Looming over this difficult
balancing act was the threat of Brexit’s most ardent supporters within Rishi
Sunak’s own party, who remained anxious lest the new deal introduce an enhanced
degree of alignment between UK law and EU law post Brexit (as unhelpfully
splashed in the Telegraph).
It turns out that Sunak’s formula
for performing such a complex feat has been to announce as little as possible
as loudly as possible (a masterclass in the Yes, Prime Minister,
“radical tie for sober announcement” approach to policy). The new Command
Paper is more than twice as long as the Windsor Framework Command
Paper of February 2023 and proclaims just how much it matters (derivatives
of “important” appear more than 50 times in the text, buttressed by nearly 30
uses of forms of “significant”). In appreciation of how well a ship building
metaphor plays in Northern Ireland, commitments are “copper fastened” fully
five times in the text.
Announcing the new package in Parliament,
the Northern Ireland Secretary declared that the Conservative Party was “the
party of the Union”. You could be forgiven for thinking at this point that he
had not read the document, for it is repeatedly damning of the Conservatives’
record in office. The Command Paper laments that failing to respond to Unionist
concerns during negotiations over Brexit had “undermined economic and political
stability in Northern Ireland” (para 16) and lamented that “The decision of the
then Government to drop UK Internal Market Act clauses that would have
protected NI-GB trade meant that unfettered access was placed in legal
jeopardy” (para 27). If only Rishi Sunak could find out who was Chancellor of
the Exchequer at the time of that decision.
Such is the DUP’s fury over the
undermining of their position by the Conservatives, however, that the efforts
to address these concerns are a necessary part of the package, notwithstanding
the deflection of blame onto “the then Government”. What is perhaps more
surprising are some of the tonal slips. There are repeated reference to “the
sense” or “the perception” of the Union being under threat, so as to give
Sunak’s government enough cover to claim to be addressing DUP concerns without
ever acknowledging that it accepts them wholesale.
The most practically significant
elements of the Command Paper relate to the expansion and rebranding of the
“green lane” arrangements by which goods not generally believed to be at risk
of onward movement into the EU as they are moved from Great Britain into Northern
Ireland are subject to a minimal regime of checks based around specific risks.
These risks are identified on the basis of analysis of real-time trade flow
data shared with the EU. It is important
to note that these developments were to a large extent foreshadowed in the
Windsor Framework, as the operation of data sharing and risk management
processes became embedded. We are less than a year on from the acknowledgment
that “[t]hese protections are also not static, with specific recognition in the
agreement of the need to monitor, and as necessary adapt to, other changes in
the future” (Windsor Framework Command Paper, 2023, para 50). That the
rebranded internal market lane has been pledged to be operative “as soon as
possible” speaks to the need for the EU to accept the adequacy of the processes
in meeting the UK’s obligations.
Alongside these changes come an
agreement with the EU, and a draft legal text, which when concluded at the next
Joint Committee meeting will enable businesses operating in Northern Ireland to
have full access to goods imported into the UK under the UK’s post-Brexit trade
agreements. Much as hill farmers in Tyrone are unlikely to be jumping for joy
at the prospect of direct competition from New Zealand lamb, this development
does close off a complaint that Northern Ireland is experiencing post-Brexit
trading rules in a way that is distinct from (and for some, disadvantageous to)
the arrangements for the rest of the UK.
The DUP’s Gavin Robinson was
eager to draw attention to this change:
“We were told
that there would be no legal change to the Windsor framework or the EU text,
yet—this was part of the process of ensuring trust and commitment—colleagues
will have noticed the publication just yesterday of more than 60 pages of
legislative changes to text on the European perspective”
It is accurate to state that
Joint Committee decisions have legal status equal to Withdrawal Agreement
provisions, but this is better regarded as an outworking of the Windsor
Framework rather than a change to its core text. The Windsor Framework Command Paper
made it clear that this development was a priority for the UK and the EU (see
para 15), it is just one that has taken some months come to fruition given the
complexity of the subject matter. As the new Command Paper notes, “There is
always the potential for issues to emerge, and for challenges to need to be
addressed. That capacity for ongoing dialogue, and for further development as
may be required, is acknowledged in the Windsor Framework and its accompanying
political declaration” (para 35). No one should be jumping up to say that
Brexit is finally done.
One key take away, which extends
from the Windsor Framework into the new Command Paper, is that the UK
Government’s focus has been on trading rules and not goods production. The
DUP’s Carla Lockhart put the issue directly to Chris Heaton-Harris in the
Commons; “Will the Secretary of State therefore confirm whether Northern
Ireland still remains under the EU’s single market laws for the production of
food and agrifood?” This drew a terse response from the Secretary of State;
“May I recommend that she re-reads the Windsor framework and indeed the Command
Paper?” If anyone does reread the documents they will find very little relevant
to goods production, and the UK Government might be better advised not to
attempt to obscure the reality that their efforts have been focused on securing
(dual) market access for Northern Ireland produced goods, not attempting to
reset the rules governing goods production established under the Protocol.
In parts of the Paper, the UK
Government become quite shrill in their insistence about the limitations to the
operation of EU law in Northern Ireland after Brexit; “The important starting
point is that the Windsor Framework applies only in respect of the trade in
goods - the vast majority of public policy is entirely untouched by it” (para
46). It is impossible not to see this as predominantly for the consumption of
its own MPs, because the discussion is couched entirely in terms of the Windsor
Framework having no impact on the Rwanda policy.
This is a strange flex in the
middle of a document about trade and Northern Ireland, and amounts to an
attempt to deny any general significance to the “non-diminution” of rights
commitment under Article 2. The problem for these claims is that the
non-diminution commitment does encompass elements of EU law like the Trafficking
Directive which means that different rights protections are at issue in
Northern Ireland by comparison to the rest of the UK. The Command Paper,
perhaps unsurprisingly, makes no mention of the fact that the Northern Ireland
Human Rights Commission is currently engaged in litigation challenging the Illegal
Migration Act 2023 for what it regards as breaches of Article 2.
The new legislative protections
for Northern Ireland’s place in the Union is where the document goes full
Houdini. In discussing the UK Supreme Court’s Allister judgment, the Command
Paper is at pains to assert that the UK Parliament is fully sovereign and has
“taken back control” post Brexit (“Importantly, the Supreme Court importantly
recognised the UK’s sovereignty, exercised through Parliament”, at para 51,
which I guess must mean it is doubly important). But just a few pages after
this reminder that nothing is “permanent or irreversible” in this Government’s
account of the UK Constitution, come the supposed guarantees of Northern
Ireland’s place in the Union.
The most significant of these
come in the form of statutory instruments (the Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024, the Windsor
Framework (Internal Market and Unfettered Access) Regulations 2024 and the Windsor
Framework (Marking of Retail Goods) Regulations 2024), which, promulgated under
the European Union Withdrawal Act, allow for far ranging changes to primary
legislation, including the Act itself. This allows these blocks of the deal to
be put in place rapidly, and Stormont restored. It also, of course, allows for
the whole process to be completed with cursory parliamentary scrutiny.
The Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024 begins with an
amendment to section 38 of the European
Union (Withdrawal Agreement) Act 2020, asserting that the Windsor Framework
operates without prejudice to the “constitutional status of Northern Ireland as
part of the United Kingdom”. This is constitutional surplusage. The whole point
of the legislation is to implement an international agreement, and it is
therefore to be read in light of that agreement. And Article 1 of the Northern
Ireland Protocol, as remixed by the Windsor Framework, affirms that it operates
“without prejudice” to Northern Ireland’s constitutional status.
This Statutory Instrument then
takes an interesting turn. It inserts section 38A into the 2020 Act, which purports
to ban any future UK Government from ratifying any new agreement with the
European Union “that would create a new regulatory border between Great Britain
and Northern Ireland”. Two observations can be made of this pledge. The first
is that the horse has very much bolted. The Windsor Framework provides a
continuing mechanism for new and amended EU law relating to trade in goods to
apply to Northern Ireland (subject to the requirements of the Stormont veto,
which UK Governments can ultimately override if they disagree with a use of
it). There is thus no need for any new Agreement – a process of response to
change in EU law is baked into the existing arrangements and this new stricture
will not apply to it. Second, anyone who seeks to put much weight on this
pledge was not paying attention to the UK Government’s explanation of
parliamentary sovereignty just a few pages earlier. This commitment is a gimmick,
not unlike the statutory “tax lock” once promised by David Cameron.
The Statutory Instrument then
sets out an amendment to section 7A of the European
Union (Withdrawal) Act 2018. This is the closest that the whole process
comes to a live wire, because this provision is the connective tissue which
allows EU law to have legal effect within the domestic legal order insofar as
it gives effect to the Withdrawal Agreement (including the Protocol). Great
play has been made of this amendment as the end to the “automatic” application
of EU law in Northern Ireland. But that is not what this amendment does. A
large body of EU rules applies because of the Withdrawal Agreement, although
the amendment of some of these rules, or the addition of new EU measures, is
subject under the Windsor Framework to the operation of the Stormont Brake.
This new provision simply makes
that reality explicit in the statute. This perhaps has a clarificatory
function, but it suffices once again to note that this is a statute
implementing an international agreement and the operation of section 7A has
been assumed to operate to take account of the working of the Stormont Brake
since the Brake was introduced. It is worth noting explicitly that the
obligation on the law of Northern Ireland to automatically track developments in
the equality directives contained within Annex 1 of the Protocol, as modified
by the Windsor Framework, remains in full effect as it is not subject to the
Stormont Brake.
The Statutory Instrument then
amends the 2018 Act to require a ministerial acknowledgement before the
Parliament of whether a Bill affects trade between Northern Ireland and the
rest of the UK. This has been likened to the process under the Human Rights Act
by which ministers have to make a statement on the compliance of new legislation
with human rights. And there is an irony to this present government lifting and
repurposing such a provision. In this instance, however, the assessment does
not have to be conducted before every piece of legislation, but only where
ministers think there might be an issue. Plenty of scope exists for this
element to be overlooked, and it has no legal impact on the operation of a
statute in which it is not included. Very soon such ministerial statements will
become background noise.
The last piece of legislative
reform that I will address in this piece has also been accompanied by noisy
speculation; the UK Government has promised to banish from the statute book any
duty to have “due regard” to the all-island economy. This is very much in the
weeds of Brexit, but when Theresa May was having difficulty securing the
passage of the Withdrawal Agreement legislation she was obliged to concede the
Patten amendment, which became section 10 of the European Union (Withdrawal)
Act 2018. This was meant to restrict any ministerial attempts to use the
wide-ranging powers of delegated legislation under the Act to ignore the UK’s
commitments as part of the negotiating process made in the 2017 Joint Report.
Ministers had to have “due regard” to maintaining regulatory alignment which
supported the “all-island economy” in their use of these powers.
This phrase is a particular
bugbear of Unionism, and the Command Paper makes great play of the dangers of
“the divisive and misguided political notion of the ‘all-island economy’” (para
71), but it is a stretch to say it is still playing any part in informing
government policy. For one thing, new powers to implement the Protocol were
created in the 2020 Act, and it is arguable that the strictures imposed on the
original powers in the 2018 Act do not apply to them. Second, read in context,
the commitment in paragraph 49 of the 2017
Joint Report is about the backstop. A lot of water has passed under the
bridge since then; it is not relevant to interpreting the UK’s subsequent
(distinct) obligations. At best, this is the cleaning up of an outdated
provision on the statute book.
For all that attention devoted to
minor or inconsequential issues, a remarkable aspect of the Command Paper is
the extent to which it still leaves important issues unresolved. Paragraph 121
of the Paper makes an eye-catching commitment:
“The
Government can also confirm that there will be no Border Control Post at
Cairnryan. While goods that do not qualify for unfettered access to the UK’s
internal market - such as goods moving from Ireland via Northern Ireland - will
need to comply with the formalities required of any other third country goods
movements, we will develop an approach to checks and formalities on those goods
that does not pose any risk to the free and unfettered movement of qualifying
Northern Ireland goods.”
The commitment, however, obscures
a continuing problem. The UK Government has not finalised its definition of
Qualifying Northern Ireland Goods (despite talking about expanding the
definition for months).
With the Border
Target Operating Model now taking effect in Great Britain there remains no
clarity on what the government will do to check whether goods shipments moving
from Northern Ireland into Great Britain involve goods which qualify for
unfettered access and those which should be checked. There is no easy answer to
this issues that does not require some assessment of whether goods movements
meet the criteria, but the failure to address the issue in detail in the Paper
must generate suspicions that Unionists might find the approach the UK is
contemplating unpalatable.
The final thirty pages of the
Command Paper consists of “make weight” content, with Annex 1 addressing the
history of barriers to trade which have existed since the conclusion of the
Acts of Union and the creation of Northern Ireland. This content amounts to a
repost to claims that the “Acts of Union are the Union” or that Article VI must
somehow be “restored” or “fulfilled”. They speak to the incompleteness of the
UK’s removal of barriers to trade which came with incorporating Ireland into
the Union, and to the amount of times subsequent legislation has impinged upon
trade.
But they also speak to an
opportunity lost. These realities have been known, and discussed,
for years. Successive UK Governments, however, have cultivated inaccurate
impressions of the workings of the extent to which the Union operated to remove
barriers to trade for their own purposes. This is not a summary that the
Johnson Government, which talked relentlessly of “the provisions of the Acts of
Union playing a key role in keeping markets open” (Internal
Market White Paper, 2020, para 63) would have produced. Instead it is a
belated effort to redress that narrative. It is also a rushed effort, with
large sections of it apparently lifted from Professor Henry Patterson’s account
of trade between different parts of the UK since the Acts of Union published in
the Belfast Newsletter
earlier this week.
No such package would be complete
without reheating some existing promises. The Castlereagh Foundation was
announced in the New
Decade, New Approach deal (para 26) as a means “to support academic
research through Universities and other partners to explore identity and the
shifting patterns of social identity in Northern Ireland”. The fact that
Castlereagh’s biographer, John Bew, is the
great survivor amongst special advisers to recent UK Prime Ministers is surely
not coincidental to this enduring fixation with a politician best remembered
for being maligned by Shelley after
Peterloo, for the Castlereagh Foundation is once again promised, indeed
guaranteed, in Annex 2. Given the overall tenor of the Paper, perhaps the
inclusion of reheated promises was inevitable, but it does flag the extent to
which the UK Government’s supposed commitments to Northern Ireland fade in and
out depending on the extent to which it is in crisis. What might Shelley say of
the whole thing; Very smooth, yet grim.
At this juncture, this account
might give the impression that these new developments are so insubstantial as
to not warrant Jeffrey Donaldson’s return to power sharing. But that is only
the case because all of the heavy lifting was done in the Windsor Framework’s
mitigations. Where these changes are at their most substantive, they are a
continuation of developments explicitly planned as part of the Windsor
Framework. Where they are window dressing, and there is a large amount of
window dressing, all of this could have been asserted many months ago.
The sour taste that the whole arrangement
leaves is that of a lost year in Northern Ireland’s governance. A year in which
politicians in Northern Ireland could have been governing in the interests of
the people of Northern Ireland and helping to address the cost of living
crisis. The conclusion of needs-based funding arrangements did not have to
become bound up in the story of the Windsor Framework, but the parties
returning to power sharing could not contemplate governing Northern Ireland
effectively without something being done to address the unsustainable pressure
on its finances.
The UK Government reached a
workable compromise with the EU in the Windsor Framework and the new
arrangements are in large part no more than outworkings of that deal. Had Sunak
been less concerned with looking over his shoulder at the threat posed by his
predecessors, so much more could have been done to involve the Northern Ireland
parties directly in the Windsor Framework negotiations and to arrive at
something that landed first time, without the need to confect this second deal.