Harry Gillow is a public and EU law barrister who has acted on a number of leading cases on the retained EU law. He previously worked for Sir Bill Cash MP on the Brexit campaign.
The Windsor Framework is two things: remarkable, and remarkably complex.
The deal is dense, technocratic, and – as you’d expect the EU – highly legalistic. The real, practical effects will take months and years to become fully apparent. The legal documents are dense and detailed, and there’ll be many hours of work for lawyers picking through the implications.
Anyone claiming to understand the deal entirely, at this stage, is almost certainly wrong.
This is a critical moment in the Brexit process, and there’s a degree to which both sides of the debate have a vested interest in underselling the deal.
On the one hand, consistently anti-Brexit voices will downplay the significance of mechanisms such as the Stormont Brake, dismissing them as technocratic tinkering with limited actual utility (and leaving aside the enormous symbolic importance represented by the EU’s concession here).
On the other, Brexiteers such as Lord Frost, and some Unionists, will insist that, fundamentally, nothing’s changed: Northern Ireland is still subject to EU law and Court of Justice rulings as a matter of principle; the deal represents pragmatism and problem-solving over sweeping changes to the underlying position.
I have considerably more sympathy for the latter view, but it sidesteps the enormous importance of reaching any kind of solution to Northern Ireland’s position. No deal is going to be perfect, but what’s the alternative to the Framework?
The EU is legalistic to a fault, fiercely protective of its internal market. The Belfast Agreement does not make a land border on the island of Ireland legally impossible, as some claim, but it does make it politically very difficult – even without the real possibility of violence.
Moreover, and coming back to the first point, the deal is remarkable.
I’ll admit I was sceptical that a deal properly addressing the UK’s legitimate concerns about the Union could be reached. But the Stormont Brake is an extraordinary mechanism, allowing the UK a veto on changes to EU law.
Yes, the Brake is by its own terms only to be used in rare circumstances and where all other options have been explored, but that’s natural for such a dramatic mechanism – compare for example the restrictions on anti-dumping actions and countervailing duties on subsidies in WTO law. or the availability of domestic judicial review.
Inevitably it represents a compromise, but it gives the Northern Ireland Assembly a real say in issues affecting Northern Irish residents.
Likewise, the carve-outs and new systems should reduce the day-to-day impact of EU law on the vast majority of British citizens in Northern Ireland. Much like Jim Hacker, the Prime Minister has gone out to bat for the British sausage.
The Government has achieved something quite remarkable in persuading a suspicious, and at times downright hostile, EU to accept a series of mechanisms which, at their heart, rely on trust in the UK to function; this is particularly impressive in areas like agrifood standards and biosecurity.
It’s true that much of this achieves the same effect as extension of the grace periods, but the achievement of placing this on a secure legal footing shouldn’t be undervalued.
The Framework gives the UK a real opportunity to diverge from EU regulations without jeopardising the British internal market, the peace process, or the UK’s relationship with the EU.
There’s now scope for this country to adopt its own agricultural and product standards, and develop specific VAT and duties regimes to suit the specific needs of the domestic economy, all without undermining the Union.
I’m not suggesting the deal is perfect. There are gaps: state aid is subject to the same EU framework as before, albeit with some welcome clarification of how EU state aid rules apply to companies from the remainder of the UK when there is a link to Northern Ireland.
There’s probably space for further compromise here, particularly if the EU withdraws or amends its 2021 notice on the application of its state aid regime to Northern Ireland, which takes a considerably wider approach than the new joint declaration.
Notably, though, the EU has not recognised the regime in the Subsidy Control Act 2022 as equivalent to the EU regime, such that changes could be made to Article 10 of the Protocol to allow the new UK regime to apply in Northern Ireland. There’s scope for more progress to be made here.
Similarly, the continued role of the Court of Justice over EU law applicable in Northern Ireland is very far from perfect (albeit unavoidable, given how jealously the ECJ guards its role as the ultimate arbiter of EU law).
The Framework does, however, mean that the vast majority of British citizens both within Northern Ireland and the remainder of the UK will rarely run into issues of EU law.
Hugh Bennett right to point out, in his characteristically detailed analysis, that there are also gaps in the new rules for flows of goods and sales of UK-standard products within Northern Ireland.
But I think this deal is more than just a coat of new paint. One of the key advantages is the opportunity to build on the successes already achieved going forwards.
Take Bennett’s point that the deal doesn’t allow for UK-standard goods outside (e.g.) food products to be sold in Northern Ireland. What the Framework does set up is a series of mechanisms that could be applied to other sectors and categories of product in the future.
London and Brussels have agreed processes which should limit the most noticeable impacts on Northern Irish residents immediately, while providing a template for future negotiations once any wrinkles in the operation of these have been ironed out. The building blocks of this can already be seen in the provisions for cooperation over future divergence in VAT and duty rates.
Finally, the deal represents something a reset in UK-EU relations. Not only does that offer Britain the chance to build directly on the achievements already in the Framework, but also holds out the possibility of more effective cooperation on a range of other issues.
The immediate prize is re-entry into the Horizon scientific research initiative, but there are other areas where closer cooperation could benefit the UK, including EU space initiatives, defence, and security. Given the UK’s vital role in the defence of Eastern Europe, it’s in both sides’ interest to work effectively together.
No deal will ever be perfect. How much progress this deal ultimately represents, and how much remains to be done, is necessarily an open question. We won’t know the full picture until all the details have been exhaustively analysed and until the Framework is in operation.
There will undoubtedly be areas where further work is needed to ensure the smooth operation of the Framework, and likewise areas where there’s considerably more scope for progress than has actually been made so far.
The assessments of the ERG and DUP will be important; the latter may conclude that the Framework doesn’t mean their seven tests (particularly the first test; the advice of John Larkin KC, a former Attorney General for Northern Ireland, is worth reading on this point).
Overall though, this agreement is a genuinely impressive achievement. The EU has been persuaded to adopt a more pragmatic approach than the last few years would have suggested is possible, and the Framework is valuable in its own right and as a solid foundation for future negotiations.
The Prime Minister and the entire negotiating team can be proud of a remarkable result. Their critics should be careful not to make the perfect the enemy of the good.