Professor Colin Murray: The Protocol deal — a ‘just like that’ moment seven years in the making
Colin Murray, professor of law and democracy at Newcastle University, considers the Windsor Framework.
It takes a long time for the fury and animosity to subside over an event like Brexit. We’ve spent seven years going back and forward over the reasons why imposing a customs and regulatory border across the island of Ireland is a bad idea, and multiple variations of an alternative to it. Will the Windsor Framework be any more successful than the May Backstop and the Johnson Protocol before it?
The policy win is obvious for all sides. Rishi Sunak needs something to convince voters that he is an effective leader if he is to try to claw back the Conservatives’ position in the polls after the debacle of Liz Truss’ premiership. He can’t risk a trade war with the EU amid a cost of living crisis and knows that, for all the manoeuvrings of the last week, that the ERG are not interested in bringing down his Government at a time when a general election would be disastrous.
As for the DUP, insofar as they matter to Sunak’s calculations, perhaps now is the time to accept tangible wins and move on (movement on pets, medicines and VAT are all supposed to speak directly to consistent DUP talking points). There is not going to be more on the table through them holding out, and prolonging Northern Ireland’s instability is not going to strengthen its place in the Union in the long term. Even the title of the new agreement is carefully calibrated to apply the soothing balm of monarchism to their wounded sensibilities. Besides, the UK Government have made arrangements to keep managing Northern Ireland pretty much indefinitely by a form of direct rule, so the DUP’s future leverage is uncertain. Perhaps the worst thing that can happen is that they vacillate over the deal, and allow some of the forces that they have stoked within Loyalism to take control of the narrative and ultimately leave them boxed in.
And, on the other side of the table, the EU Commission might well simply be questioning the point of continuing interminable struggles over the precise rules applicable to Northern Ireland, unimportant as it is in the context of the size of the EU Single Market. Now that it has secured improved data sharing by the UK Government, allowing it to conduct a managed-risk approach to the Protocol, it finally feels secure enough to accept mitigations to the Protocol’s terms. Ireland, however, seems to have conceded most through this deal (even if it was not directly at the table). The trade dislocations inherent in the Protocol were the inevitable result of traders pivoting to North-South opportunities because of Brexit barriers to trade. Mitigate those barriers, and a lot of this new business is now at risk. Perhaps the calculation is that the deal does enough to protect existing trade, and that is enough. Perhaps the damage wreaked upon North-South co-operation and UK-Ireland relations at a political level meant that it was no longer worth it.
Perhaps the new Protocol deal is therefore less about the substance of its terms, and more about all of the parties finally having exhausted their energy for this most intractable aspect of Brexit and seeking to move on. Not that the substance of the deal is unimportant; Northern Ireland is small, underdeveloped and peripheral to the UK and European economies. Anything in the Windsor Framework that helps to alleviate barriers to trade is therefore significant. But the full terms of the slew of documents released to accompany the deal will take quite some time to digest, so the focus of the following analysis will extend only to a few headline measures.
The most significant aspect is that this keeps Northern Ireland aligned with the EU Single Market for Goods. The role of the Court of Justice remains. It is a reworking of the Protocol’s impact, affected through Joint Committee Action and unilateral measures by the UK and the EU. It is not, therefore, a new model, something that will concern those Unionists who focused upon Article VI of the Act of Union (the first of the DUP’s seven points, although not one which has much traction after the UK Supreme Court’s Allister judgment). But it is a very different take on that model. The amount of EU law required for goods regulation is restricted (limiting the EU Court’s role to the bare bones of areas that remain). This does not mean that Northern Ireland will not continue to align with large areas of EU law to facilitate effective goods regulation; but it substitutes shallow mandatory deep alignment and (likely) a considerable amount of voluntary alignment, for broad mandatory deep alignment.
This is the first return of freedom of action, even if using it would sometimes come with prohibitive costs for businesses, to Northern Ireland’s institutions. The second major push to address the Protocol’s democratic deficit – “the Stormont brake” – is the flourish of the whole deal. Drawing upon the New Decade, New Approach Petition of Concern mechanism, which allows a group of 30 (of the 90) Stormont MLAs from two parties (which will generally be of one community designation) to trigger cross-community consent requirements for legislation at Stormont on the basis of that community’s concerns regarding the legislation. The Stormont Brake, however, is not a DUP veto (not least because it only won 25 MLAs in the last election).
To reach the required threshold, outside very unusual circumstances, the DUP could only trigger it through co-operation with the UUP. Even then, the new feature works like an extended version of the process involving Article 16 of the NI Protocol (on “safeguards”). Where there is a significant change to EU law, which is subject to objection under this mechanism, the UK Government will be able to notify the EU and suspend the operation of the EU measures in question. If it is misapplied, as with Article 16, there is scope for arbitration. All of this echoes Article 16, but it is also, in significant ways, more constrained. The UK Government cannot simply assert Unionist concerns to threaten the operation of an aspect of Single Market law: those concerns have to be manifested through this mechanism. And it provides a powerful incentive to restore Stormont; with no operative Assembly, this new feature is moribund.
And with that, the Protocol Bill, with which the UK government had threatened to unilaterally disapply parts of the Protocol, can be waved off the stage. Perhaps it did its job as a piece of theatre, enabling Sunak to play good cop to Johnson’s bad cop in his visible reluctance to take forward the legislation. But Johnson’s efforts to cast himself as the once-and-future-King have likely also played into this deal. The EU are eager to move on from his bombast, and are willing to shore up Sunak with concessions in the expectation of a better era of relations. The degree of the shift from the EU’s October 2021 proposals is a marker of how much they are willing to invest in this new relationship, of the degree to which technocratic dealing yields results over table thumping. And the Commission can be confident that, given the Conservative position in the polls, this will likely be a lead-in phase to further strengthening of cooperation under a Keir Starmer-led Government.
Does this mean that the Protocol problem has been solved? When the wheels came off the deal in early 2021, following the eruption over Covid vaccines and the possibility of the EU triggering Article 16, it was a scant few days after Boris Johnson had lauded the Joint Committee clarifications on the Protocol’s workings. The big difference this time round is that the press conference announcing the Windsor Framework was so ebullient; the Sunak Government will struggle to claim that they did not understand the terms they were signing up to, as Boris Johnson attempted.
The EU’s post-Brexit relationship with the UK continues to develop and the Protocol will, nonetheless, still need to be managed against the backdrop of the heightened fragility of constitutional politics in Northern Ireland; there will undoubtedly be other difficulties down the line which will need to be navigated. There will come a point when the Stormont Brake will be on the table and, perhaps sooner, when the EU identifies a particular risk to the Single Market and seeks that checks be ramped up. But progress is in the process. The key actors appear committed to no longer using Northern Ireland as leverage in their post-Brexit relationship, and to manage challenges through the Withdrawal Agreement’s technocratic committee systems. Northern Ireland’s stability rests on these issues being kept out of the headlines.
- Colin Murray is professor of law and democracy at Newcastle Law School. This article first appeared on the DCU Brexit Institute blog and is reproduced here with their kind permission.