Brexit is far from finished business

The Windsor Framework, agreed to this week by UK prime minister Rishi Sunak and the European Union, vindicates the actions of Northern Ireland’s Democratic Unionist Party. After all, it was the DUP’s decision to effectively shut down the Northern Ireland Assembly, and suspend the operation of the Good Friday Agreement, that helped pressure the EU into renegotiating the Northern Ireland Protocol – the post-Brexit arrangements that were originally negotiated by Sunak’s predecessor, and left NI in the EU’s Single Market for goods.

The Windsor Framework may fall well short of the DUP’s demands, but gains have been made, including making life a lot easier for trade across the Irish Sea. The leaders of Sinn Féin, the Social Democratic and Labour Party, Alliance and the Green Party, who all called in July 2020 for the rigorous implementation of the protocol, now agree with the DUP that change was needed, and welcome the considerable changes that have been made.

Of course, it wasn’t just the DUP that brought the EU back to the negotiating table. Former PM Boris Johnson’s decision to introduce the Northern Ireland Protocol Bill also added to the pressure on the EU. The bill would have allowed UK ministers to override the protocol. This clearly worried the EU, hence it has gone a long way to agreeing reforms to the protocol so as to ensure that Johnson’s bill will now be scrapped. The fact that the UK had a strong bottom line meant that the recent negotiations were meaningful. In any case, the EU is keen to move on. As Ursula von der Leyen put it in the press conference to announce the framework, the EU and UK share basic values and need to work together over Ukraine, climate change and other important issues. Conflict over the protocol has become an unnecessary impediment to EU-UK cooperation.

So the EU has moved a long way on the protocol. But let’s be clear, it has not given up its control over much of the Northern Irish economy. Johnson and his chief Brexit negotiator, Lord Frost, aimed to roll back EU law in the protocol and replace it with UK law. While Sunak’s Windsor deal softens the application of the protocol, it does not change it. Indeed, it arguably increases the scope of EU law.

The government’s new command paper claims that the latest proposals ‘deliver on the core objectives’ of Frost’s 2021 command paper, which originally set out the changes the government wanted to make to the protocol. But this overstates the reality. Trade restrictions have been eased on goods from GB destined solely for consumption in NI, but a form of customs declaration is still required alongside certificates of compliance and checks for food imports. Customs details are even required for parcels from Amazon, but the necessary customs data will be supplied by the firms involved and will be invisible to consumers.

The new easements on trade incorporate the UK’s unilateral grace periods, which the EU were previously legally contesting but now agree to make permanent. A major change is that the UK’s Trade Support Service (TSS) will complete the 21-line customs declarations, based on normal commercial data supplied by firms. This was the original purpose of the £350million TSS when it was set up two years ago, before it was reduced to an advisory service. Derogations and clarifications have made life easier for imports from GB by dispensing with a raft of EU regulations. But EU law remains in place and the EU reserves the right to remove the concessions if it loses trust in the UK.

Importantly, the panoply of EU regulations governing manufacturing and farming inside NI remains in place. Significant parts of the NI economy are governed from Brussels, not London. The UK side has made much of the ‘Stormont Brake’, by which London can disapply any new EU regulations on firms in NI. But it can only do this, it seems, in extreme circumstances. Existing regulations will continue to apply even if the UK changes regulations in GB. If, for instance, genetically modified flour was allowed in GB, it could be used in cakes sent to NI marked as not for sale in the EU. The flour could not, however, be used by bakers in NI as long as EU prohibitions remained in force. This could put NI producers at a disadvantage selling into markets in GB and indeed also those in NI. Future divergence from the UK is likely to increase friction unless the UK is able to challenge existing as well as future EU regulations.

It seems likely, however, that few such UK divergences are planned. Instead, the UK will probably march in step with EU reforms, many of which reflect global agreements anyway. Most NI firms will not object to the retention of these regulations since they allow companies to retain their advantage in having customs-free access into EU markets. They will argue that the previous ‘price’ of this benefit in higher import costs has been reduced by the new trade arrangements.

The EU will now allow a range of previously prescribed goods, like chilled meats, into NI. However, the new rules will be little noticed by consumers in NI since prescribed goods, medicines and parcels were already reaching them due to the grace periods. The advantage is that the grace-period easements are now mutually agreed between the EU and the UK. The reduction in customs administration should reduce prices by a few per cent, although the gains will be difficult to spot amid other inflationary pressures.

What should the DUP do now? Some will argue for further concessions, but substantial changes will not be immediately forthcoming. There are no good options, but the best bet for them may be to accept what is on offer as a partial advance while continuing to campaign to remove EU law altogether.

The ongoing campaign for Brexit could be pursued inside the Stormont assembly and executive. In 2024, for instance, the existing protocol provides for an assembly vote on whether the protocol should survive. The DUP could use this as an opportunity to persuade other local parties to support major improvements to the Windsor Framework. This will be difficult, but is not impossible. Greater freedom from the EU is still there to be won.

Graham Gudgin was special adviser to the first minister in Northern Ireland from 1998 to 2002.