3 October 2023

The Windsor Framework is no triumph – it’s a disaster for Northern Ireland


On Sunday morning, the first elements of Rishi Sunak’s ‘Windsor Framework’ Brexit deal came into force. When goods move between Great Britain and Northern Ireland, they must now pass through either a ‘red lane’, that requires the full gamut of customs formalities, or a ‘green lane’, that, in theory at least, involves fewer checks and less paperwork.

The Prime Minister is keen to portray the framework as a significant achievement and proof of his leadership qualities. In a series of interviews before the Conservative Party Conference he maintained that the deal solved the biggest problems with Boris Johnson’s Northern Ireland Protocol, which created an Irish Sea border. He insisted the framework removed trade barriers, safeguarded the province’s place in the UK internal market and allowed goods to move freely.

The trouble is, there is mounting evidence that these claims are, at best, exaggerated, and, at worst, simply untrue.  

At the conference on Sunday, the Northern Ireland Secretary, Chris Heaton-Harris, created worries for his sanity, when he described his job as ‘the best in … government’.  He then went on to defend the deal on the basis that, ‘The vast majority of Northern Ireland’s economic life is [still] dependent on its connection with the rest of the United Kingdom.’

That may be accurate at the moment, but the framework threatens to realign the province’s economy permanently toward the Republic of Ireland and the EU. This diversion of trade is an incendiary constitutional issue, in a region that, relatively recently, suffered a campaign of Irish separatist terrorism.

In the Belfast News Letter, on Saturday, Heaton-Harris wrote, ‘Due to the creation of the green lane, the substantial majority of trade moving between Great Britain and Northern Ireland will be treated as UK internal trade.’ That was a glib and misleading way to describe the arrangements that have actually come into force.

If companies want to send goods through the new green lane (which is intended for products that will stay in Northern Ireland), they must first sign up for ‘trusted trader’ status, under the new United Kingdom Internal Market Scheme (UKIMS). To qualify for the scheme, the ‘importer’ must be able to prove that the products are ‘not at risk’ of entering the EU.  

That may mean that UKIMS companies have to fill in less paperwork than their counterparts using the ‘red lane’, but they still have to account, in detail, for the contents of each trailer, and some 10% of shipments will be subjected to physical checks. In addition, many goods must be labelled ‘not for EU,’ a stipulation that applies initially to pre-packed meat and dairy items, but will be phased-in to cover more products from 2024 and 2025.

Most manufacturers will be unable to prove that their purchases are ‘not at risk’ of entering the EU, so they will have to bring supplies through the red lane, with the exception of some items for internal use. That means that the goods will be treated as if they were being sent to a foreign country, with the result that many British companies may stop selling to the province altogether. Ulster businesses will inevitably face higher costs and their supply chains will be redirected to the European Union. 

Many independent retailers will also struggle to meet the requirements for the ‘green lane’, according to Neil Johnston, the director of the Northern Ireland Retail Consortium, who predicted there will be ‘a lot of shelves in smaller stores that are not compliant,’ with the new labelling regime. 

In fact, even though the new system was criticised for being designed with supermarket giants rather than smaller businesses in mind, some of Britain’s leading chains have already ruled out using the green lane for many products.

While the framework was presented as progress toward solving the problems created by the Northern Ireland Protocol, therefore, most commentators now agree that its immediate effect will be to make the Irish Sea border harder. The protocol, when it proved unworkable, was never fully implemented, because the government introduced ‘grace periods’ and exemptions to keep goods moving across the Irish Sea, covering, for example, parcels, medicines and food. Now, these easements have come to an end. 

The University of Ulster’s senior economist, Dr Esmond Birnie, wrote last week that, because of this factor, ‘The Windsor Framework will almost certainly increase… frictions (i.e. extra costs for businesses).’

For consumers, the end of the parcel grace period means that major courier companies like DHL and DPD have drafted extensive lists of ‘prohibited items’ that they will no longer deliver to Northern Ireland. These include very common mail order purchases, like electrical goods, as well as most food and drink. In theory, these products could travel through the ‘green lane’, but shoppers in Northern Ireland may effectively be shut out of the British online shopping market. At best, they will face consistently higher delivery prices.

The issues that the framework failed to solve with sovereignty and the constitution may be less tangible, but they are equally significant and potentially more destabilising to the province’s politics. Northern Ireland remains under swathes of EU law that do not apply in the rest of the UK. This has occasionally been presented as a ‘democratic deficit’, but even if Ulster’s voters and politicians had direct input into Brussels’ decision-making, that would mean British sovereignty in Ulster had been diluted.

To address this difficulty, the government previously planned to introduce dual-regulation for goods in the province’s market, meaning manufacturers could have met either British or EU standards. The greatest flaw in Rishi Sunak’s deal was arguably that it dropped these plans, so Northern Irish companies must continue to comply with Brussels’ rules. And goods that don’t meet these requirements (other than food and medicines) cannot be sold there.

Last week, in a possible portent of what is to come. European judges ordered Britain to pay £28m of fines for failing to impose the EU’s laws on fuel for pleasure boats in Northern Ireland. It’s a sign that Brussels not only retains authority over an integral part of the UK, but that it intends to impose its rules aggressively on British territory.

At the Tory conference, these issues have barely been acknowledged. Rishi Sunak is busy trying to restyle himself as a conviction Conservative, who is equipped to challenge Keir Starmer at next year’s general election. It’s unlikely that he will reconsider the framework willingly, as he continues to present it as a negotiating achievement. It’s not the first time that the mere fact of a deal over Northern Ireland is being treated as more important than its content.

The government’s failure to remove the Irish Sea border will mean businesses and consumers face practical problems, but it also deprives the Democratic Unionist Party (DUP) of a convincing argument to restore power-sharing at Stormont. It’s hard to see how Sir Jeffrey Donaldson’s party could persuade voters that it was justified in returning to the devolved executive, which it boycotted in February 2022, while barriers to trade deepen and the EU’s authority over Northern Ireland tightens. 

Mr Heaton-Harris claimed in his conference speech that ‘there is scope’ to address the DUP’s concerns about the framework, ‘based on the principle that the UK internal market must be promoted as well as protected.’ In Northern Ireland, in contrast, the loyalist campaigner, Jamie Bryson, warned that street protests could erupt and unionist Assembly members would be treated as ‘collaborators’, if they returned to Stormont to implement the sea border.

This language might seem overwrought, and it earned a rebuke from Donaldson, who said that the DUP would not bow to ‘pressure, threats or blackmail’. But it reflected simmering anger among working class unionists, who feel abandoned and ignored by a government that they believe dismantled important aspects of the Union to assuage Irish nationalist and EU demands. That resentment could easily be redirected at the DUP, if it backed down without a compelling explanation.

The government reportedly intends to implement the framework with a ‘soft touch’ initially, and that may disguise some of its failings for a while. The deal, though, stipulated clearly that all the arrangements should be working properly, with the necessary physical infrastructure in place, by 2025. 

It will be difficult for Rishi Sunak to maintain for long the illusion that the Windsor Framework showed he can be an astute and effective negotiator. But his commitment to that conceit could be enough to prevent the government from fixing a bad deal and consign Northern Ireland to indefinite political instability.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.