Why a new agreement was necessary

While it was evident that each had grown weary of the tension, they made a show of this effort at reconciliation for the sake of the troublesome heir. Northern Ireland had been given special consideration in the divorce deal of the Withdrawal Agreement precisely because it was quite so attached to both sides. The practicalities of the arrangements of the Protocol were to prove as messy as the emotions that they evoked.

There is nothing just about the angst, grief and anger provoked by Brexit for a portion of the population in Northern Ireland being matched by similar feelings among others in response to the Protocol. What made its effects all the worse, of course, was the fact that what happened after its negotiation could be textbook guidance on ‘how not to implement an agreement’. Prime Minister Johnson’s advice to ‘throw the paperwork in the bin’ and Secretary of State Lewis’ claim that ‘there is no Irish Sea border’ are cringeworthy signs of this failure but they are not the cause.

There was, first and foremost, a lack of public UK-EU agreement on the problem that the Protocol was meant to solve – and thus a suspicion persisted that the ‘Brexit border problem’ was an Irish-EU conspiracy and not a legal consequence of ‘taking back control’. Then, once negotiated, there was not only near-obfuscation of its meaning but active contradiction of the experts who spelled it out. The UK and EU offered near-opposite interpretations from early on, which only added to the confusion. And so when the Protocol came into effect, there was unsurprisingly a lack of preparedness for its implications.

Thus, the grace periods for implementation were experienced not as pathways for readiness but necessary legal blank spots to avoid the minor calamities that would follow if the rules were enforced. In such circumstances, the EU had to realise that – contrary to its initial fears – the ‘flexibility’ it had shown Northern Ireland was not such that would see it skipping gleefully into the ‘best of both worlds’. And the UK had to acknowledge that non-implementation was not a condition that could be sustained indefinitely – and that unilateral action to redraw the Protocol was not a sustainable outcome either.

Figure 1

Meanwhile, those border-related emotions were becoming entrenched, and having all too real effect in the political sphere. We saw this in the polling that we conducted through LucidTalk every four months in the ‘Post-Brexit Governance NI’ project at Queen’s University. By late 2021, opinions on the Protocol had settled into a fairly clear pattern (see Figure 1). The pro-Remain party supporters were strongly pro-Protocol, the pro-Leave supporters were anti-Protocol (although soft unionists were somewhat split on the matter). Even if they saw it as bringing some potential economic opportunities, most people believed that the Protocol was having a negative impact on political stability in Northern Ireland – how could they not?

Having told anti-Protocol unionists that unilateral action in the form of the NI Protocol Bill was a sign that their concerns were understood, the UK Government moved to agree the Windsor Framework. There are two questions, then, about the Windsor Framework. The first is what will it do? The second is will it work?

What the new agreement might mean

The Windsor Framework is best understood as a modification of the Protocol – most particularly in terms of how the rules are to be implemented, if not the rules themselves. The word ‘framework’ is apt because it is a structure which gives shape to UK-EU agreement over Northern Ireland’s post-Brexit arrangements. It can be adjusted over time – the key is that the two appear determined that this should only be done by mutual agreement. To that end, it has got off to a good start. The foundation for it is a decision by the UK-EU Joint Committee which oversees the Withdrawal Agreement, and which retains considerable decision-making power. And to bring that into effect, the EU has passed the necessary laws in double quick time.

What difference will it make in practice?

The Windsor Framework is an agreement to implement a modified version of the Protocol – so it will mean change, albeit offered in a way intended to cause least disruption. This will take place over the next two and a half years, according to the current timetable (see Figure 2). The hope of the UK and EU is that companies in GB won’t be able to blame the Protocol (or Windsor Framework as it is now to be known) for refusing to sell to Northern Ireland or quoting considerably higher costs. They can register in the new UK Internal Market Scheme to minimise customs requirements. Similarly, behind scenes arrangements with the UK Government for parcel carriers is intended to allow NI customers to experience little change in business to business (B2B) or business to consumer (B2C) deliveries from GB.

The main thing that people will notice as a change is the appearance of labels on some food and drink products saying that they are not for sale in the EU. These labels are going to be rolled out in retailers across Britain who sell such goods in Northern Ireland. This is part of a condition for getting foods to consumers in NI, i.e. through ‘the green lane’, even if they haven’t been certified to meet EU standards. Many businesses bringing goods to Northern Ireland will still want to make sure that they meet EU standards and will use the so-called ‘red lane’. Goods in that lane will be subject to more checks and controls, and there will be facilities built in NI ports to facilitate that. That will be a visible change, if you hunted it out.

What doesn’t change? Northern Ireland continues to align with a portion of EU law, particularly that relating to product and food standards, so that the Irish border remains open to allow NI goods to freely access the EU – although there will be more ‘market surveillance’ around it to ensure that those ‘not for EU’ products rarely slip across.

But, of course, it isn’t red or green lanes that will determine the intensity of those border-related emotions. The fact of there being a UK-EU agreement is one thing – how it is implemented will be all-important. The texts and implications of the agreement need to be interpreted consistently, jointly and publicly. Northern Ireland’s problems are ones to be tackled collaboratively and by mutual agreement, and not by private deals or public contestation.

A ‘new era’ for a relationship comes the same way as the old one did: one day at a time, one decision at a time. To really act for the sake of this place – where political emotions still run high and democracy runs thin – the UK and EU must realise the potential of each day and each decision to make things better.

Figure 2