Hugh Bennett is a former special adviser to Boris Johnson and Liz Truss, and was a member of the UK’s EU negotiating team from 2020-2022.
From the tone of this week’s announcement of a deal on the Protocol, one could be forgiven for thinking that the Protocol had been entirely dispensed with.
“Any sense” of a border in the Irish Sea removed, thousands of pages of EU laws scrapped, the democratic deficit addressed, Northern Ireland’s place in the Union secured. The Protocol reduced to a technocratic footnote, its nexus of bureaucratic problems and legal pitfalls swept fully to one side by the indomitable new Windsor Framework (‘the Framework’).
But peer behind the press releases and it quickly becomes apparent that the Framework is much less a new car than the same old model with a fresh lick of paint on it and a new tyre or two.
Yes, the new Green Lane arrangements and VAT measures will improve life for businesses that have been struggling under the Protocol for years. Yes, needless headaches around the movement of medicines, pets and plants have been cleared.
And yes, even some limited treaty change has been achieved, a feat which many observers long thought impossible.
Rishi Sunak and his team deserve credit for all of these achievements, and they should make a measurable difference to everyday lives in Northern Ireland.
However, what they have not done is change the underlying legal architecture of the Protocol in any way.
Of the four direct legal changes to the Protocol agreed, one is non-operative (the commitment to greater green lane facilitations), one is the Stormont Brake (more of which later), and two are technical changes to VAT arrangements.
The fundamental asymmetry of the Protocol – that significant parts of life in Northern Ireland are governed under the direct effect of EU law – which the EU can, and has, changed at the stroke of a pen, but which its own Government in the UK is powerless to alter – has not changed.
Northern Ireland is still bound into the EU’s state aid regime.
Moreover, the EU can still choose to sue the UK in the European Court of Justice over most of the Protocol; the political commitment to seek to resolve issues through dialogue rather than formal disputes lasts only as long as the politics on either side suits it. Legally, to coin a phrase, it has no more weight than a copy of the Beano.
The new Green Lane arrangements illustrate this problem.
There are some notable negotiating successes for the UK here, including the elimination of requirements for traders to submit commodity codes and supplementary declarations, the expansion of the agrifood scheme to wholesalers and smaller retailers, and the acceptance of UK standards for consumer food products.
(The fresh fanfare about sausages was somewhat less warranted, as the EU has already allowed these to flow into Northern Ireland since July 2021, albeit on a more uncertain legal basis.)
However, these facilitations for the most part cannot be implemented directly by the UK or even bilaterally by the Joint Committee. Instead the UK must wait for the EU to amend its own legislation, with the changes then flowing through directly into Northern Ireland via the Protocol.
EU law requirements for simplified customs declarations will still apply even in the new Green Lane – the UK has just taken the administrative decision to shield most traders from having to engage directly with the customs requirements by outsourcing to a third-party HMRC service (the Trader Support Service) instead.
The so-called Stormont Brake – while it will have been a difficult concession to prise from the EU – ultimately serves more to highlight how asymmetric the ongoing arrangements are, rather than restoring any meaningful balance to them.
Against a backdrop of hundreds of EU laws which will continue to apply in Northern Ireland, a group of Assembly Members may object to individual new laws if, and only if, a very high threshold is reached.
Even then it will not be an automatic process, but it will be for HM Government and its lawyers to judge whether that high threshold has been reached before notifying the EU, at which point the EU can either challenge the UK’s justification or impose remedial measures.
Given Whitehall’s general institutional aversion to confrontation with the EU, the chances of this mechanism being used in practice are remote.
The Brake also takes no account of any issues that may arise from the UK choosing to diverge, as is its right as a sovereign country outside the EU.
With the Government still intending to pass the Brexit Freedoms Bill, including its general sunsetting of retained EU law, before the end of the year this will no longer be a hypothetical problem.
Disappointingly, the Government did not manage to agree that UK-standard manufactured goods could be sold to end consumers in Northern Ireland, despite the EU agreeing for UK-standard food products, which it purports to consider much more high-risk.
This leaves the UK with a Hobson’s choice – make changes to benefit manufacturers in Great Britain but risk shutting out Northern Irish consumers, or fudge the sunset by rolling most remaining EU law into British equivalents and wasting the opportunity to genuinely reform it.
Ultimately, the Stormont Brake more resembles a rounding error than a real resolution to the democratic deficit.
That is not to say that the positive elements of the Windsor Framework were not worth agreeing – far from it. But overall, it has been a masterclass in rebranding.
To present it as the decisive breakthrough on the Protocol risks undermining the genuine progress that has clearly been made, both by setting unrealistic expectations of what the deal actually achieves, and by diminishing the UK’s ability to respond quickly and fully to any future problems that arise.
Serious structural issues with the Protocol – regulatory divergence, state aid and its underlying legal and diplomatic irregularity, to name a few – remain unresolved and will inevitably rear their heads in the not-too-distant future.
The Northern Ireland Protocol Bill was the UK’s only legislative route to try to level the legal playing field between the two sides in future – with such deep-rooted problems still unresolved, surrendering it looks distinctly premature and risks being a strategic mistake.
The state of Westminster politics makes it likely that the deal will pass without major Parliamentary opposition, although it yet remains unclear whether that will also be the case in Northern Ireland.
But whatever its fate, the one thing that is clear about the Windsor Framework and the concessions made by the UK to reach it is that, far from replacing the Protocol, it will in fact significantly entrench it.
The Protocol is dead – long live the Protocol.
Hugh Bennett is a former special adviser to Boris Johnson and Liz Truss, and was a member of the UK’s EU negotiating team from 2020-2022.
From the tone of this week’s announcement of a deal on the Protocol, one could be forgiven for thinking that the Protocol had been entirely dispensed with.
“Any sense” of a border in the Irish Sea removed, thousands of pages of EU laws scrapped, the democratic deficit addressed, Northern Ireland’s place in the Union secured. The Protocol reduced to a technocratic footnote, its nexus of bureaucratic problems and legal pitfalls swept fully to one side by the indomitable new Windsor Framework (‘the Framework’).
But peer behind the press releases and it quickly becomes apparent that the Framework is much less a new car than the same old model with a fresh lick of paint on it and a new tyre or two.
Yes, the new Green Lane arrangements and VAT measures will improve life for businesses that have been struggling under the Protocol for years. Yes, needless headaches around the movement of medicines, pets and plants have been cleared.
And yes, even some limited treaty change has been achieved, a feat which many observers long thought impossible.
Rishi Sunak and his team deserve credit for all of these achievements, and they should make a measurable difference to everyday lives in Northern Ireland.
However, what they have not done is change the underlying legal architecture of the Protocol in any way.
Of the four direct legal changes to the Protocol agreed, one is non-operative (the commitment to greater green lane facilitations), one is the Stormont Brake (more of which later), and two are technical changes to VAT arrangements.
The fundamental asymmetry of the Protocol – that significant parts of life in Northern Ireland are governed under the direct effect of EU law – which the EU can, and has, changed at the stroke of a pen, but which its own Government in the UK is powerless to alter – has not changed.
Northern Ireland is still bound into the EU’s state aid regime.
Moreover, the EU can still choose to sue the UK in the European Court of Justice over most of the Protocol; the political commitment to seek to resolve issues through dialogue rather than formal disputes lasts only as long as the politics on either side suits it. Legally, to coin a phrase, it has no more weight than a copy of the Beano.
The new Green Lane arrangements illustrate this problem.
There are some notable negotiating successes for the UK here, including the elimination of requirements for traders to submit commodity codes and supplementary declarations, the expansion of the agrifood scheme to wholesalers and smaller retailers, and the acceptance of UK standards for consumer food products.
(The fresh fanfare about sausages was somewhat less warranted, as the EU has already allowed these to flow into Northern Ireland since July 2021, albeit on a more uncertain legal basis.)
However, these facilitations for the most part cannot be implemented directly by the UK or even bilaterally by the Joint Committee. Instead the UK must wait for the EU to amend its own legislation, with the changes then flowing through directly into Northern Ireland via the Protocol.
EU law requirements for simplified customs declarations will still apply even in the new Green Lane – the UK has just taken the administrative decision to shield most traders from having to engage directly with the customs requirements by outsourcing to a third-party HMRC service (the Trader Support Service) instead.
The so-called Stormont Brake – while it will have been a difficult concession to prise from the EU – ultimately serves more to highlight how asymmetric the ongoing arrangements are, rather than restoring any meaningful balance to them.
Against a backdrop of hundreds of EU laws which will continue to apply in Northern Ireland, a group of Assembly Members may object to individual new laws if, and only if, a very high threshold is reached.
Even then it will not be an automatic process, but it will be for HM Government and its lawyers to judge whether that high threshold has been reached before notifying the EU, at which point the EU can either challenge the UK’s justification or impose remedial measures.
Given Whitehall’s general institutional aversion to confrontation with the EU, the chances of this mechanism being used in practice are remote.
The Brake also takes no account of any issues that may arise from the UK choosing to diverge, as is its right as a sovereign country outside the EU.
With the Government still intending to pass the Brexit Freedoms Bill, including its general sunsetting of retained EU law, before the end of the year this will no longer be a hypothetical problem.
Disappointingly, the Government did not manage to agree that UK-standard manufactured goods could be sold to end consumers in Northern Ireland, despite the EU agreeing for UK-standard food products, which it purports to consider much more high-risk.
This leaves the UK with a Hobson’s choice – make changes to benefit manufacturers in Great Britain but risk shutting out Northern Irish consumers, or fudge the sunset by rolling most remaining EU law into British equivalents and wasting the opportunity to genuinely reform it.
Ultimately, the Stormont Brake more resembles a rounding error than a real resolution to the democratic deficit.
That is not to say that the positive elements of the Windsor Framework were not worth agreeing – far from it. But overall, it has been a masterclass in rebranding.
To present it as the decisive breakthrough on the Protocol risks undermining the genuine progress that has clearly been made, both by setting unrealistic expectations of what the deal actually achieves, and by diminishing the UK’s ability to respond quickly and fully to any future problems that arise.
Serious structural issues with the Protocol – regulatory divergence, state aid and its underlying legal and diplomatic irregularity, to name a few – remain unresolved and will inevitably rear their heads in the not-too-distant future.
The Northern Ireland Protocol Bill was the UK’s only legislative route to try to level the legal playing field between the two sides in future – with such deep-rooted problems still unresolved, surrendering it looks distinctly premature and risks being a strategic mistake.
The state of Westminster politics makes it likely that the deal will pass without major Parliamentary opposition, although it yet remains unclear whether that will also be the case in Northern Ireland.
But whatever its fate, the one thing that is clear about the Windsor Framework and the concessions made by the UK to reach it is that, far from replacing the Protocol, it will in fact significantly entrench it.
The Protocol is dead – long live the Protocol.