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Article United Kingdom: Windsor Framework to Replace Northern Ireland Protocol

On February 27, 2023, the government of the United Kingdom (U.K.) announced that the European Union (EU) and the U.K. have agreed in principle to the “Windsor Framework” to help resolve issues that arose in Northern Ireland due to the U.K.’s departure from the EU (Brexit). The government intends that the new agreement will “fix the practical problems for the people and businesses of Northern Ireland, protect[ ] Northern Ireland’s place within our Union, and restore[ ] the balance of the Belfast (Good Friday) Agreement in all its dimensions.” According to the government’s Command Paper on the agreement, communities and businesses in Northern Ireland maintain that the Protocol on Ireland/Northern Ireland is “unworkable” and cannot be rigorously implemented without causing “lasting economic and political damage.” The Command Paper further states that “[t]he Protocol has already led to significant disruption in the links between Great Britain and Northern Ireland that are integral to its place in our Union and the UK’s internal market.”

To resolve these issues, the Windsor Framework will remove 1,700 pages of EU laws and, subsequently, interpretation and oversight of the European Court of Justice from areas such as medicines, Value Added Tax (VAT), and food safety. These actions will have a wide-reaching impact on both Northern Ireland and Great Britain (comprising England, Wales, and Scotland). The remaining 3% of the EU rules “apply to preserve the privileged, unrestricted access for Northern Ireland businesses to the whole of the EU Single Market and avoid a hard border on the island side of Ireland.”

The Windsor Framework addresses concerns regarding any form of border between Northern Ireland and Great Britain. It provides for two lanes for goods between Great Britain and Northern Ireland. One lane, known as the green lane for the U.K.’s internal market, is provided for goods whose end use or consumption will be in Northern Ireland and thus remain in the U.K. The agreement removes the majority of the paperwork, checks, and duties on these goods, with only those preventing smuggling or crime remaining. The other lane, known as the red lane, is for all goods traveling to the EU, which will continue to remain subject to “EU customs and Sanitary and Phyto-sanitary (SPS) procedures.”

The government notes that this will be a significantly improved process for many businesses, and will include grocery stores and the hospitality business. It provided the example of agrifood, where a truck carrying goods for a grocery store in Northern Ireland that would have previously had to complete 500 different certificates can now mark the goods as “not for EU” and bypass these requirements. The transportation of goods is to be built upon three pillars: “a trusted trader scheme with a robust authorisation and monitoring process; data-sharing on movements of goods allowing risk-assessments to be performed; and reinforced procedures, such as increased market surveillance, in place to guarantee that such goods will be consumed only in Northern Ireland.”

VAT rates and excise charges will once again be applied to the entirety of the U.K. This means that the VAT rate in Northern Ireland can be set below the EU VAT minima rates. For example, zero rates of VAT on energy-saving materials, and different duty rates for alcohol, which have been applied in Great Britain, can now be applied to Northern Ireland. The U.K. will provide clarification regarding state aid to help ensure that U.K. aid is not provided when it impacts trade between Northern Ireland and the EU and thus falls within the EU’s state-aid framework.

There will be a dual regulation program for medicines in Northern Ireland. Medicines will be licensed across the entire U.K. by the Medicines and Healthcare Products Regulatory Agency and available to individuals in Northern Ireland at the same time as in Great Britain. The dual regulation means the healthcare industry in Northern Ireland will continue to conduct trade with the EU and U.K. markets.

Pets will be able to travel between Northern Ireland and Great Britain without veterinary health certificates and rabies vaccinations; parcels will not require a customs declaration, and certain native British plants will be able to be transported more easily to Northern Ireland.

The framework includes a mechanism, known as the Stormont Brake, which means the Northern Ireland Assembly can veto new EU goods laws if they are significantly different from the current rules and not supported by both political parties in Northern Ireland.

The government intends that

[t]his agreement [will] restore[] the balance of the Belfast (Good Friday) Agreement by fundamentally recasting arrangements in three key areas: restoring the smooth flow of trade within the UK internal market by removing the burdens that have disrupted East-West trade; safeguarding Northern Ireland’s place in the Union by addressing practical problems affecting the availability of goods from Great Britain, and the ability of Northern Ireland to benefit from UK-wide tax and spend policies; and addressing the democratic deficit that was otherwise at the heart of the old Protocol.

The implementation of the framework will occur through a series of legal instruments and in phases that are intended to be completed by 2024. The U.K. government has stated it will stop proceeding with the controversial Northern Ireland Protocol Bill. To ensure a smooth transition to the new framework, the U.K. and EU have agreed to resolve any issues that may arise through “engagement in the Withdrawal Agreement Joint Committee” before starting formal dispute proceedings.

Clare Feikert-Ahalt, Law Library of Congress
March 2, 2023

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