On 27th February, in a classic moment of diplomatic theatre, Prime Minister Rishi Sunak and President of the European Commission Ursula von der Leyen signed off the Windsor Framework, the deal to sort the post-Brexit disputes about the Northern Ireland Protocol and the challenges it presents for the UK union. By all accounts, the main parameters of the deal had been ready for some days, if not weeks. But the border down the Irish sea is the most technical and politically sensitive of issues. Sunak needed time to get his political ducks in a row and, perhaps, to screw his courage to the sticking point.
But he got there—and he will feel vindicated by the early reaction. The key aspects were much as anticipated. Suffice to say that the deal is comprehensive; all the major points of friction that had inhibited the functioning of the Protocol have been addressed, at least to a degree. Goods destined for the Northern Ireland market will flow more easily from Great Britain. UK state aid and VAT rules will—largely—apply in Northern Ireland. Plants, pets and parcels will travel with fewer restrictions. Politicians in Northern Ireland will be more engaged in the consideration of potential changes to the EU rules that still apply. The egregious Northern Ireland Protocol Bill, which would have permitted the UK to unilaterally rip up its treaty commitments, is consigned to the bin. A final flourish is the “Stormont brake”, which allows a functioning Northern Ireland Assembly to seek to put on hold changes to EU law deemed inimical to interests in Northern Ireland.
To be clear, this deal is about how the Protocol is implemented, it is not a fundamental re-writing of the international treaty that underpins it. For all the bright words of the prime minister, there is still a trade border between Great Britain and Northern Ireland, albeit one that to most intents and purposes will be barely visible. The role of the European Court of Justice remains; it will be the final arbiter of any questions of EU law that emerge from the operation of the single market in Northern Ireland. Businesses in Northern Ireland will continue to benefit from being in both that market and the UK internal market.
No doubt those suspicious of the motives of the prime minister, notably the Democratic Unionist Party and the irreconcilable Brexiteers in and around the European Research Group, will be crawling over the detail to see what they can find to attack. But, whatever their conclusions, neither can stop this deal in its tracks. Because this is not a new treaty, there is no need for the government to seek formal approval from parliament. Even if it does choose to do so and there is a vote, that vote will almost certainly be won by the government, not least because opposition parties will lock in behind it. So on this issue, the ERG, whatever they conclude, have nowhere to go. The deal may foment wider discontent with the Sunak premiership among the hardliners, but on this issue alone they will not topple him. He has outplayed them.
What about the DUP? Never in a hurry to be constructive, the party could, if it so wanted, find reasons for why the deal does not meet the seven tests it set; indeed, if taken literally, these would require the scrapping of the Protocol in its entirety. The party collapsed power-sharing at Stormont in protest at the operation of the new Irish sea border. But having supported Brexit and rejected Theresa May’s deal, which was explicitly designed to avoid the need for special arrangements to manage trade between Great Britain and Northern Ireland, the party has now put itself between the rock of hardline Unionist opposition to the Protocol and the hard place of majority support in Northern Ireland for the restoration of the Executive. If the DUP decides in the end not to allow devolved government to resume, that will be very bad news for people in Northern Ireland. It will, however, be mostly a matter for Northern Irish domestic politics, with which the vast majority of the population in Great Britain will not engage. The DUP has lost its traction.
So, can we breathe a sigh of relief and say that Brexit really has now been done? Certainly, the deal on the Protocol has dealt with the last major hangover from the actual exit negotiations. The basis for the UK’s post-Brexit relationship with the EU has been set. But the world won’t stand still. Even in respect of the Protocol, implementation of the new deal will throw up a multitude of niggles and unintended twists. The UK-EU Joint Committee, charged with its management, will have to earn its keep.
The nature of the post-Brexit British regulatory state remains obscure and inchoate
On the wider relationship, a series of review moments looms: data adequacy, financial services, fisheries, the trade agreement itself, all will be subject to reappraisal in the two to three years ahead. The intertwining of mutual interests will mean a state of near-constant negotiation.
On the domestic front, there are gaping holes in the UK’s own implementation of Brexit. The UK side of the EU border remains unchecked. The date for achieving compliance with the new UK regulations for chemicals has been delayed, the requirement for a UK Conformity Assessment product mark pushed back. The uncertain consequences of the ill-conceived and potentially disastrous Retained EU Law Bill hang over a myriad of businesses and other organisations. Overall, the nature of the post-Brexit British regulatory state remains obscure and inchoate.
But there are choices on the Brexit road ahead. Already, there are indications that the deal on the Northern Ireland Protocol creates the opportunity for further improvement in EU-UK relations. UK accession to the Horizon science and research programme can now be defrosted, an important benefit for UK scientists and universities. It is suddenly possible to imagine that the UK and the EU will work together to ameliorate some of the more damaging aspects of the Trade and Cooperation Agreement struck by the two sides in 2020.
In retrospect, we may come to realise that the short-lived Truss experiment was the lowest point of the Brexit descent, the moment at which the furious energy of the Brexit insurgency finally lost momentum in a welter of impossibilities. Now, we can ask, has the Windsor Framework signalled the start of the long, slow trudge back up the hill towards a sensible, constructive and stable relationship with the UK’s most important partner, the EU?
