The Windsor Framework has failed – ending NI problems requires moving trade border back to Irish mainland
Mutual Enforcement of each other’s trade rules only way to create ‘invisible border’, reassure Brussels and safeguard UK sovereignty in Northern Ireland
Think-tank Centre for Brexit Policy draws up detailed scheme to end dispute over Northern Ireland Protocol and Windsor Framework
Plan backed by DUP leader Sir Jeffrey Donaldson and leaders of European Research Group
Detailed plans to end the growing problems in Northern Ireland and break the deadlock over the Northern Ireland Protocol (NIP), backed by DUP leaders and senior Conservative MPs, have been drawn up by the country’s leading pro-Brexit think-tank and submitted to ministers.
The new package – which will be launched at an event in Westminster on Tuesday 27th June – eliminates the need for the Windsor Framework, the revised version of the NIP, which is bitterly opposed by Unionists because of its growing disruption of Northern Ireland’s trade and restrictions on food supplies, its compromises on British sovereignty in the Province and its threats to the Good Friday Agreement, which brought peace after 30 years of bitter sectarian strife and bloodshed.
At the same time, it would reassure the European Union that its rules governing the movement of goods to Northern Ireland would be fully observed and would not undermine the single market through leakage across an invisible border to the Republic of Ireland.
At a stroke, there would be no need for checks on goods either across an east-west border, as envisaged by the Windsor Framework, nor at a hard border between the north and south of Ireland.
Nor, critically, would there be any need for the European Court of Justice to have any powers over the trading arrangements in Northern Ireland, just as it has no jurisdiction over the rest of the UK. Nor, any control over British support to companies in Great Britain.
The proposal from the Centre for Brexit Policy has won the backing of the DUP leader Sir Jeffrey Donaldson and prominent figures in the European Research Group, the 60-strong pro-Brexit Conservative backbench organisation.
Sir Jeffrey says in a foreword to the CBP report, Mutual Enforcement – The Key to Restoring Government in Stormont, that Mutual Enforcement justifies “serious and sustained consideration” in the quest for a lasting solution and would respect Northern Ireland’s constitutional position as part of the UK.
He goes on to say that, “Economically, the corrosive impact of the Protocol has been undeniable, even with grace periods in place. In 2021 there were over a million customs declarations between GB and NI affecting over 10,000 businesses and worth £12.4bn. . . . there has been a clear and ongoing diversion of trade from Great Britain to the Republic of Ireland.”
“Meanwhile hundreds of millions of pounds in trader support has been spent by the Government on mitigating needless and prohibitive trade barriers East-West. All because the EU and non-unionist parties in Northern Ireland thought it was acceptable to impose draconian controls in the Irish Sea that were somehow unpalatable North-South.”
He says: “The DUP wants to see Stormont back up and running again as soon as possible and on a sound and stable foundation. The stakes are extremely high and this necessitates a willingness on all sides to engage constructively with proposals that could help end the logjam and protect our place in the Internal Market of the United Kingdom.
“Although the DUP has set out criteria against which we will assess any proposal, we have been clear throughout that Mutual Enforcement is a concept worthy of serious and sustained consideration in terms of delivering a longer-term solution.
“The vast majority of trade from Great Britain is destined for, and remains, within Northern Ireland. There is a negligible risk to the integrity of the EU market.
“Indeed it is hard to find a single reported case of goods crossing the border since 2020 which have been a threat to their Irish and EU consumers – despite many EU rules not having been applied.
“Even where goods are destined for the EU, it seems reasonable that each side could maintain regulatory autonomy whilst enforcing whatever rules the other seeks to impose on only those goods crossing the border.
“In the longer term, this would sustainably address the potential problems caused by the imposition of regulations by an entirely separate regulatory regime and respect our constitutional position as part of the UK.”
The DUP leader is supported by former Conservative Cabinet minister David Jones, deputy chairman of the ERG. Mr Jones says in his foreword to the report:
“It is clear that the Protocol is not a sustainable long-term arrangement. Sooner or later – and preferably sooner – it will have to be replaced by something better.”
“This paper presents a workable solution to the problem. Mutual Enforcement is an elegant end effective arrangement that respects the sovereignty of the United Kingdom and restores the full place of Northern Ireland in our Union.”
“Equally, it protects the integrity of both the EU Single Market and the UK internal market. It dispenses with the anomalous state of affairs whereby the court of one party to the Withdrawal Agreement has jurisdiction over the other.”
“Mutual Enforcement, in short, will normalise relations between the UK and the EU, thrown out of kilter by the Northern Ireland Protocol. “
In its submission to ministers, the CBP says that a simple system of “Mutual Enforcement” under which the UK and the EU implement the other side’s trading rules and regulations, is the only way to break the deadlock and restore power-sharing government to Northern Ireland.
Under Mutual Enforcement, UK officials would enforce the laws of the EU in the UK, and EU officials would enforce UK laws in their areas of jurisdiction inside the single market.
UK exporters to the EU who flouted EU rules would be detected and punished by UK courts. Similarly, EU exporters to the UK would be policed by EU officials and they would be responsible for imposing fines for breaches of UK law.
The CBP plan comes against the background of the refusal of the DUP to re-enter power-sharing arrangements at Stormont despite the fact that Rishi Sunak negotiated a revised version of the NIP – the Windsor Framework – in February.
In its paper, the CBP says:
“Mutual Enforcement, based on existing international trade practice and endorsed in the government’s July 2021 Command Paper, protects both the UK and EU trading blocs, returns sovereignty to NI as part of the United Kingdom, and enables the return of the invisible border on the island of Ireland.
“It cuts through NI’s Gordian knot of post-Brexit sovereignty, trade, and governance issues. It unlocks the return of the DUP to Stormont.
“The NIP is the cause of that Gordian knot. Successive governments have tried to amend it, but ultimately only added to its complexity. The latest iteration of this approach, the “Windsor Framework”, has already failed the governance test: the DUP (supported in their position by a significant number of Westminster MPs) have not returned to Stormont.
“And the growing clamour from NI businesses suggests that the much-hyped trading arrangements – Green and Red Lanes – are failing their first contacts with reality.
“Mutual Enforcement removes all the negative consequences of the Protocol/Framework yet achieves the stated broader objectives of the Protocol. Unless all parties agree to move to such an alternative, Stormont cannot be re-opened.
“The UK government should set out to agree Mutual Enforcement with Brussels and, with or without Brussels’ agreement, abandon the Protocol and Framework as soon as possible.”
The key points made in the CBP paper are:
- The Protocol does not work legally, commercially, or politically and can be voided.
- The Framework has failed to get Stormont running again
- To get the DUP back to power-sharing devolved government at Stormont, all parties must get behind a solution that creates an ‘invisible’ North-South Irish mainland border, obviating any need for the Protocol/Framework
- Only Mutual Enforcement can provide an invisible North-South border
The paper explains that Windsor Framework has failed because:
- EU law remains supreme in NI
- The rights of the people of NI under the Acts of Union 1800 are not restored
- The ‘Green Lane’ is not really a ‘Green Lane’
- The protection offered by the Stormont Brake is de minimis and unlikely to be used in practice
- The Framework does not allow for an exit from the Withdrawal Agreement or Protocol other than through a highly complex legal process
- Government claims do not match the reality