Professor Steve Peers, University of Essex
Photo by David Iliff - License: CC BY-SA 3.0
After many months of on-off negotiations and three Prime Ministers on the UK side, the UK and EU have agreed another Brexit deal: the so-called Windsor Framework, which amends the controversial Northern Ireland protocol (or as we must soon call it, the Protocol Formerly Known as Northern Irish), and includes a number of other legal texts. This blog post is in two parts: this first post is an overview of the Windsor Framework as a whole, while a second part looks in more detail at a specific issue: the ‘Stormont Brake’ on amendments or replacements to EU legislation within the scope of the protocol.
At present, the current Northern Ireland protocol is attached to the withdrawal agreement (which I summarised here; I have updated my summary of the protocol for this section of this blog post). (On the current legal framework overall, see also my working paper on the withdrawal agreement, and the Yearbook of European Law article based on that working paper).
The Protocol is the one part of the withdrawal agreement that was changed after the UK Parliament refused to ratify it; among other things the provisions emphasising that the Protocol is meant to be temporary were dropped from the version of the protocol which had been negotiated by Theresa May and the EU. However, the possibility of replacing the Protocol by future UK/EU trade arrangements was maintained.
Article 1 of the Protocol refers to the UK’s territorial integrity; it is clear that the EU has not ‘annexed’ Northern Ireland, as some have claimed. Next, Article 2 and 3 of the Protocol refer to equality/existing rights and the common travel area between the UK and Ireland. These issues were never controversial, and the existing rights provisions have since been litigated: see Colin Murray’s analysis of the first judgment.
The current Protocol then dropped the previous UK-wide customs union backstop found in the Theresa May version. This text had linked to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which meant some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.
In place of the UK/EU customs union backstop, in the current Protocol Article 4 first specifies that Northern Ireland is part of the UK’s customs territory for international trade purposes. Article 5 then regulates trade between Great Britain and Northern Ireland. No customs duties are charged on goods moved from Great Britain to Northern Ireland, unless there is a risk that the goods may be sold in the EU. The further definition of what that means had to be worked out by the Joint Committee established by the withdrawal agreement by the end of the transition period, ie the end of 2020. In practice, the Joint Committee agreed several measures to implement the protocol by the end of that year. There is an exemption for personal property.
An Annex applies a long list of EU laws on customs, trade and goods regulation to Northern Ireland – although in the previous version some of these laws would have applied to the whole UK. The Protocol also includes provisions on the UK internal market, as well as lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, a single electricity market, and State aids.
The institutional provisions of the Protocol include the proviso that EU bodies, including the CJEU, have competence to apply or interpret certain provisions of the Protocol. It is also possible for the UK to object to new (as distinct from amended or replaced) EU laws becoming applicable in Northern Ireland; this will be discussed along with the new provisions in the Windsor Framework on objecting to amended or replaced EU laws in part 2 of this blog post.
A provision on ‘consent’ specifies that the Northern Ireland Assembly can, under certain conditions, terminate the customs and other economic provisions of the Protocol. There’s also a unilateral UK declaration related to this. (The absence of a power to end the previous backstop unilaterally had been controversial). This is the only part of the withdrawal agreement subject to the possibility of unilateral termination by one side; on the issue of terminating the agreement generally, see my discussion here.
The UK government’s implementation of the consent provisions had formed the basis of a legal challenge by unionist politicians and others which in effect tried to argue that the very existence of the protocol was unlawful in the UK. This challenge lost at every level including (recently) the UK Supreme Court (on that judgment, see Colin Murray and Anurag Deb).
Finally, the Protocol included a safeguard clause, Article 16:
1. If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
There are provisions for the other party to retaliate proportionately if one party used Article 16, and an annex which sets out procedural rules. In the event, despite much discussion, neither party has invoked Article 16; the EU Commission reversed its intention to use it to provide for possible restriction of vaccine exports before that law entered into force, and a legal challenge to the Commission on this point was unsuccessful, because in effect there was nothing to challenge.
Despite pitching the withdrawal agreement as an ‘oven ready deal’, it soon became apparent that the UK government – like the unionist community in Northern Ireland – had huge objections to the deal that it had championed, approved in Parliament, and ratified. The government first tabled an Internal Market Bill that they admitted would have been a breach of the protocol, although the offending clauses of that bill were dropped once the UK and EU reached agreement on Joint Committee decisions implementing the protocol in December 2020 (as referred to above).
Subsequently, in 2022 the government tabled another bill – the Northern Ireland protocol bill – which would arguably breach the protocol, although the government claimed that any breach would be justified by the ‘doctrine of necessity’ in international law (for a criticism of this defence, see Professor Mark Elliott’s analysis; see also Colin Murray’s analysis on this blog). For its part, believing that the UK was not fully implementing the protocol in practice, the EU Commission began infringement proceedings against the UK (on the basis of the provisions in the protocol which give the CJEU jurisdiction over much of it).
The Windsor Framework
Joint Committee decision
The core of the new Brexit deal is a draft Joint Committee decision, which would first of all amend the Protocol itself. This would be done on the basis of the Joint Committee powers, set out in the withdrawal agreement, to:
except in relation to Parts One, Four and Six, until the end of the fourth year following the end of the transition period, adopt decisions amending this Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement;
The amendments to the protocol entail first an amendment to Article 6(2) of the protocol, concerning UK internal trade (new provision underlined):
Having regard to Northern Ireland's integral place in the United Kingdom's internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof. This includes specific arrangements for the movement of goods within the United Kingdom’s internal market, consistent with Northern Ireland’s position as part of the customs territory of the United Kingdom in accordance with this Protocol, where the goods are destined for final consumption or final use in Northern Ireland and where the necessary safeguards are in place to protect the integrity of the Union’s internal market and customs union. The Joint Committee shall keep the application of this paragraph under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.
This is not so much a substantive change in itself, as a description of the changes made elsewhere in the Joint Committee Decision (see discussion below), although it might address any argument that might be made that those changes in the Decision are incompatible with the Protocol.
Secondly, an amendment to Article 13 of the protocol will add the "Stormont brake" on amended or replaced EU law. An annex to the Joint Committee decision will set out the text of a unilateral UK government statement on this process. As noted already, I will discuss the Stormont brake in part 2 of this blog post.
Next, as regards VAT and excise taxes, Article 8 of the protocol will not be amended. It reads as follows:
The provisions of Union law listed in Annex 3 to this Protocol concerning goods shall apply to and in the United Kingdom in respect of Northern Ireland.
In respect of Northern Ireland, the authorities of the United Kingdom shall be responsible for the application and the implementation of the provisions listed in Annex 3 to this Protocol, including the collection of VAT and excise duties. Under the conditions set out in those provisions, revenues resulting from transactions taxable in Northern Ireland shall not be remitted to the Union.
By way of derogation from the first paragraph, the United Kingdom may apply to supplies of goods taxable in Northern Ireland VAT exemptions and reduced rates that are applicable in Ireland in accordance with provisions listed in Annex 3 to this Protocol.
The Joint Committee shall regularly discuss the implementation of this Article, including as concerns the reductions and exemptions provided for in the provisions referred to in the first paragraph, and shall, where appropriate, adopt measures for its proper application, as necessary.
The Joint Committee may review the application of this Article, taking into account Northern Ireland's integral place in the United Kingdom's internal market, and may adopt appropriate measures as necessary.
However, the Joint Committee decision will amend Annex 3 to the protocol, which is referred to in Article 8 and which sets out the UK’s current obligations as regards VAT and excise tax in Northern Ireland in more detail. In particular, a new note added to that annex will set out several derogations from the EU’s main VAT Directive: a) for ‘goods supplied and installed in immovable property located in Northern Ireland by taxable persons’, there can be a reduced rate, a rate below 5%, or an exemption; b) the UK can have more reduced rates or rates lower than 5% or an exemption than EU Member States are allowed, going beyond a recent amendment to EU law to give more flexibility on reduced rates; and c) the UK can apply different rules on small businesses.
As regards excise tax, Annex 3 will be amended to state that the UK, as regards Northern Ireland, is exempt from certain rules in the Directive on the structure of alcohol tax, a) so it ‘may therefore apply excise duty rates on alcohol and alcoholic beverages always on the basis of alcoholic strength and may apply reduced duty rates to alcoholic beverages packaged in large draught containers served for immediate consumption in hospitality venues’, and b) ‘may therefore define small producers and set reduced duty rates to alcohol and alcoholic beverages produced by small producers, provided that such reduced duty rates are in no case, even after any applicable relief’, although in each case the minimum duty calculated under the Directive must still be charged. There are no exemptions added to the Directives on taxation of tobacco and petrol.
The Joint Committee also refers to the possibility of adding more notes to indicate how VAT and excise tax laws will apply in Northern Ireland, provided that those ‘notes shall ensure that there is no negative impact on the Union’s internal market in the form of fiscal fraud risks nor any potential distortion of competition.’
The biggest part of the Joint Committee decision will replace a previous Joint Committee decision. This is the part that will reduce checks on goods going from Great Britain to Northern Ireland, by setting out new rules indicating when a good is at risk of going to the EU as distinct from staying in Northern Ireland (following the distinction set out in the Protocol). It first defines what goods do not raise that risk because they will not be subject to commercial processing, including goods to be used in construction in Northern Ireland, the sale of food to a consumer in the UK, provision of food as part of health or care services in Northern Ireland, or animal feed. Unlike the previous Joint Committee decision, which only permitted several of these exemptions if the good was used by the importer, the new Decision allows the exemptions if the importer sells the good once to one other entity. Also a smaller business exemption has been widened from £500k to £2 million in turnover; the UK government states that this will bring about 80% of manufacturing and processing companies in Northern Ireland that trade with Great Britain within the scope of the exception. A new provision adds parcels to the list of goods movements which do not pose risks of further movement to the UK.
As for the rest of the Decision, there are new provisions on consultation as regards VAT and excise tax. Some of the new provisions will not apply until September 2023 or September 2024, in order (among other things) to ensure that the UK is supplying data, and (in the latter case) to give time for the EU to pass unilateral legislation (discussed below) relevant to the protocol – although those dates could be brought forward.
Other parts of the Windsor Framework
The other parts of the Framework are a mix of unilateral or joint measures which are mainly non-binding ‘soft law’. Crucially, though, there are also unilateral proposals for EU law, discussed further below.
A Joint Declaration states that the whole protocol should be called the ‘Windsor Framework’ from now on. There is a Joint Committee recommendation and a Joint Declaration on what happens if the UK pulls the Stormont brake and arbitrators rule against it (to be discussed in part 2).
The only other binding measure jointly agreed is a change to the rules of procedure of a working group, to involve more stakeholders from Northern Ireland in discussions. Along the same lines, there is a joint declaration on involving stakeholders in the work of the committees.
There is then a unilateral UK declaration on review of the ‘consent’ process on the future existence of the protocol (Article 18 of the protocol, discussed above); but this does not alter the consent process as such.
Next, a recommendation of the Joint Committee and a unilateral declaration by the UK address the issue of ‘market surveillance and enforcement’ – ie the prospect of cross-border smuggling.
A unilateral declaration by the UK addresses when export rules of EU law will apply to goods moving from Northern Ireland to Great Britain – although it should be recalled that most of the rules in the protocol apply to the movement of goods the other way around, because of the EU’s concerns about goods entering its internal market via Northern Ireland to Ireland without being checked. (The UK is obviously less bothered about the parallel prospect as regards its own internal market).
Another unilateral UK declaration concerns parcels moving from Great Britain to Northern Ireland, and is applicable until the new Joint Committee decision fully takes effect. A Joint Declaration notes the possibility of negotiating further amendments to VAT law in future, as regards reduced rates and refunds.
Finally, on two further controversial issues, the law stays the same. First, this applies to the current rules on State aid – where EU State aid rules apply to Northern Ireland, as enforced by the Commission – although there is now a joint declaration interpreting this provision of the protocol.
The law also stays the same as regards the jurisdiction of the CJEU on the protocol, although the effect of the Windsor Framework is to reduce the application of EU law in practice to Northern Ireland, therefore in principle reducing the number of possible cases where the CJEU might be asked to rule because EU law applies. (In practice, the CJEU has not yet exercised its jurisdiction as regards the protocol).
Finally, a joint political declaration of the EU Commission and the UK summarises the contents of the agreement, and includes commitments to drop the Northern Ireland protocol bill on the UK side, and the infringement proceedings pending on the EU side on the other. (Each had been paused pending negotiations). They also agreed that the Joint Committee would meet soon to adopt the legal texts.
EU unilateral measures
The EU Commission has also tabled proposals for EU legislation as regards medicine, food and animal checks (including movement of pets), and tariff quotas, as well as a secondary Commission measure on ‘high-risk plants’, and position papers on customs, food and animal checks, and on engagement with Northern Ireland stakeholders. In effect this legislation, while not explicitly disapplying the application of EU law to Northern Ireland in accordance with the protocol, will create a special regime (lex specialis) as regards the movement to or sale of many products there.
Not exactly part of the Windsor Framework package, but worth noting, are (on the UK side) a UK government command paper which summarises and defends the package, along with a statement of the UK government legal position (which pours cold water on the proposed Northern Ireland protocol bill). On the EU side, there is a press release and a list of Q and As on the deal that indicate what the EU’s interpretation of it is. The explanatory memorandum to the proposal for the EU Council to agree the EU’s support for the Joint Committee decision also includes some background on the EU Commission’s views. The UK government has also announced an intention to amend the Northern Ireland Act; the content of that amendment remains to be seen.
The Windsor Framework does not alter the fundamental legal framework of the Northern Ireland protocol. However, it does address its implementation in practice – notably by simplifying somewhat the movement of products between Great Britain and Northern Ireland, taking together the new Joint Committee decision and proposed EU legislation. It also scales back – again without fully disapplying as such – the application of EU tax law to the UK, in order to permit some recent changes to UK law to apply fully to Northern Ireland. So while it is technically inaccurate for the UK government to claim that the agreement ‘scraps’ 1700 pages of EU law from applying to Northern Ireland, it is fair to say that in many cases that law will no longer apply de facto, even if it applies de jure.
Some of the changes in the package will be implemented by unilateral acts by the EU, rather than jointly agreed text as between the UK and the EU, raising the possibility either that the proposals might not be adopted as proposed by the Commission, or that the EU might unilaterally amend or repeal them later – although presumably the Stormont brake would kick in if the latter happened. Likewise some of the changes depend on the EU side trusting the UK’s application and implementation of its own legislation – although there are possibilities of the EU side reacting in the event of UK failure to do so. It might also be queried whether the Joint Committee decision goes outside the limits set by the withdrawal agreement on the capacity of the Joint Committee to amend that agreement, and of whether the changes to the annexes on tax are consistent with the provisions of the protocol requiring consistency with what Ireland does on VAT.
On these points, it might have been simpler to amend the protocol in the ordinary way, which would also have provided an opportunity to amend the rules on State aid (there being little reason for the original rules, now that the Trade and Cooperation Agreement has rules on subsidies, plus the UK has passed a Subsidy Control Act), as well as curtailing the rule of the CJEU – limiting it to being asked questions about EU law by dispute settlement arbitrators, which is the minimum implicitly required by prior CJEU case law.
It is striking that the agreement is focussed very much on specific issues that have been the subject of day-to-day concern for businesses and consumers in Northern Ireland – the movement of plants such as trees and seed potatoes, pets, products for supermarkets, and parcels, for instance – as well as the application of specific changes in UK tax law. Its critics sometimes depict the EU as saying “that’s fine in practice, but will it work in theory?” But those who object that the new agreement will still retain the application of EU law in principle, even though it will more often not apply in practice, have fallen into the same trap.
With this pragmatic problem-solving approach, the Prime Minister conveys an image of being a competent manager brought in to save a failing hotel – who immediately assesses the need to wash the towels before the guests arrive and have hot rolls ready to eat with breakfast in the morning, and swiftly negotiates with staff and suppliers to get it done. Such sensible managerialism might sound dull – until you remember the Fawltyesque chaos when the previous hotel manager was in charge. And the less said about the interim hotel manager, who nearly bankrupted the whole hotel chain during her six week stint in between the two, the better.
Further reading: other analyses of the Windsor Framework
Viviane Gravey and Lisa Claire Whitten (on goods movement)
Alexander Horne (also for UK in a Changing Europe)
Harry Gillow, for Conservative Home
John Larkin KC, for Centre for the Union
Richard Bullick (thread with links to different analyses)
Graphic on the Windsor Framework, by Simon Usherwood
House of Commons Library analysis
*This blog post was amended on 5 March 2023, to add more links to other analyses, and to clarify the final sentence. It was amended again on 6 and 8 March 2023 to add additional links to other analyses.
*This blog post was amended on 5 March 2023, to add more links to other analyses, and to clarify the final sentence. It was amended again on 6 and 8 March 2023 to add additional links to other analyses.
Post a Comment