The re-establishment of devolved government in Northern Ireland was the subject of intense negotiations for months before conclusions were announced by the UK government and the leadership of the Democratic Unionist Party ‘DUP’, and with the publication on 31 January 2024 of the Command Paper ‘Safeguarding the Union’ (CP 1021).
The restoration of devolved government at Stormont has been widely welcomed, as there is a mass of work for the new government to undertake after an absence of elected devolved government for two years, in the environmental field as well as in every other policy area. The Stormont government will resume the power sharing between Nationalists committed to a united Ireland, and Unionists determined to preserve Northern Ireland’s status as part of the United Kingdom. This political context has framed the debates about where exactly post-Brexit trading arrangements have left Northern Ireland.
Legislation to deliver the revised agreement, in the form of the first two sets of regulations made by way of Affirmative Resolution, was debated in the House of Commons on Friday 2 February 2024 – (to be followed by a similar debate in the House of Lords on 13 February) - in time for the new government, led for the first time by a First Minister from Sinn Fein, to be installed on Saturday 3 February 2024.
The legislation was contained in The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, The Windsor Framework (Internal Market and Unfettered Access) Regulations 2024, and will be followed by The Windsor Framework (Marking of Retail Goods) Regulations 2024.
This is, together, legislation of fundamental constitutional importance – although constitutional statements and guarantees of Northern Ireland’s status within the United Kingdom are lumped together quite oddly with text on veterinary medicines, and shrubs and trees - so it may be worth recording what the signatories say that it is intended to do, as explained in the ‘Safeguarding the Union’ Command Paper (CP 1021) -
“The measures the Government is committing to comprise:
Legislation affirming Northern Ireland’s constitutional status underpinned by, among other provisions, the Acts of Union. The legislation will affirm Parliament’s sovereignty over all matters in Northern Ireland, and address the concern that Northern Ireland’s constitutional position in the Union has been weakened by the creation of specific arrangements for trade in goods.
Legislation guaranteeing Northern Ireland’s unfettered access to the UK’s internal market, through amending the UK Internal Market Act 2020. This will include expressly prohibiting exit procedures on goods moving from Northern Ireland to Great Britain, restoring the safeguards on unfettered access dropped by the then Government in 2020, providing for unfettered access for indirect routes to Great Britain, providing a competitive advantage and protection for Northern Ireland agrifood goods and putting in new legal measures to prevent abuse of the arrangements by Irish businesses.
Legislation to future-proof the effective operation of the UK’s internal market by preventing governments from reaching a future agreement with the EU like the Protocol that would create new EU law alignment for Northern Ireland and new barriers with Great Britain - such as any attempt to put in place new EU alignment in areas like services for NI alone, thereby offering new legal and constitutional protections that fulfil the original purpose of the Acts of Union.
Legislative change to recognise the end of the automatic pipeline of EU law - with an amendment to section 7A of the European Union (Withdrawal) Act 2018, reflecting the new reality that the law which applies in Northern Ireland is now properly subject to the democratic oversight of the Northern Ireland Assembly through the Stormont Brake and the democratic consent mechanism.
Replacing the green lane with a UK internal market system governing the movement of goods which will remain within the UK, backed by new protections for historic trade flows and reductions in burdens and formalities.
A new long-term, permanent UK Internal Market Guarantee to protect the historic trade flows between Great Britain and Northern Ireland. The Government will commit that more than 80% of all freight movements from Great Britain to Northern Ireland take place under the UK internal market system, with independent scrutiny.
Ensuring there will be no checks when goods move within the UK internal market system save those conducted by UK authorities as part of a risk-based or intelligence-led approach to tackle criminality, abuse of the scheme, smuggling and disease risks. This will ensure the smooth flow of goods that are moving within the UK internal market.
A commitment to remove the legal duties to have regard to the ‘all-island economy’ in section 10(1)(b) of the European Union (Withdrawal) Act 2018.
Legislation to maximise the flow of goods across the UK which will guarantee unfettered access for Northern Ireland goods to the rest of the UK on an ongoing basis in all scenarios, regardless of any future regulatory divergence between Northern Ireland and Great Britain; apply the Market Access Principles of mutual recognition and non-discrimination to Northern Ireland goods in Great Britain on an ongoing basis in all scenarios; and ensure that the benefits of the repeal of EU food and drink standards in the UK’s internal market are enshrined in the UK Internal Market Act.
Immediate work to identify ways to ensure that businesses can supply goods and services to the whole of the UK, including exploring how Intertrade UK can provide the information and clarification that businesses need to simplify and reduce unnecessary burdens in making their goods and services available in all parts of the UK.
Expanding the scope and scale of goods moving in the UK internal market system: We will move forward ensuring that more rest of the world products prioritised by retailers can move on the basis of British safety standards and without individual veterinary certificates. And as a result of the joint legal solution with the European Commission set out on 30 January, in the future Northern Ireland traders will be able to benefit from the UK’s independent free trade policy when importing agrifood goods. This is in addition to new legislation, published on 15 December, establishing new quotas for additional categories of GB origin steel, providing legally binding protections for tariff-free movement of this steel.
Going further on removing prohibitions on shrubs and trees: significant progress has been made with the publication of legal text on 11 December to lift the prohibition on English oaks, meaning that we have now converted the aspiration in the February Command Paper to lift bans on 11 species into legal reality. Constructive engagement with the Ulster Farmers Union, DUP and others in the horticulture sector has highlighted the need to go further. Independent scientific assessments have now been completed for common hazel - paving the way for the ban to be lifted in the next month; we are now in active scientific dialogue on lifting bans on another five species such as the sweet cherry and oval-leafed privet; and have submitted another 26 dossiers for species including black poplar and grey willow for scientific assessment. We expect to submit a further 10 dossiers for assessment over the coming months. We recognise the constructive engagement from the European Commission and extensive dialogue with the horticulture sector and DUP which has delivered substantial progress.
Legislation to confirm Windsor Framework labelling requirements will apply across the United Kingdom, in line with our longstanding commitments to remove any disincentive for suppliers, manufacturers or retailers to place goods on the market in Northern Ireland. This will provide a critical, legally binding UK-wide solution.
Publication of operational arrangements for the Stormont Brake to ensure that the arrangements are in place to enable the full use of the Stormont Brake, setting out an agreed operational approach with the Northern Ireland Assembly to enable MLAs to exercise their new functions.
The creation of a UK East-West Council to establish a unique new forum, across the United Kingdom, for key representatives from government, business and the education sector from Northern Ireland and Great Britain to identify opportunities for deepening connections between Northern Ireland and the rest of the UK in areas such as trade, transport, education and culture.
The establishment of Intertrade UK, a new body to promote trade within the UK. Its role will be to provide advice and facilitate businesses across the UK boosting internal trade, to promote the full extent of the UK’s market to businesses and traders, and to conduct and publish research or other activity designed to advance intra-UK trade.
Avoiding unnecessary gold plating in the implementation of new arrangements through new statutory guidance under section 46 of the UK Internal Market Act 2020 to set out how public authorities should have special regard to Northern Ireland’s place in the UK’s internal market, to avoid gold plating and support the free flow of goods between Great Britain and Northern Ireland.
Ensuring continued supply of necessary veterinary medicines in Northern Ireland beyond 2025, pursuing an agreement with the EU on a long-term basis but if necessary, by a guarantee of flexibilities that would be deployed by the Government. We will also shortly set out plans to introduce legislation in the spring that would avoid new regulatory divergence between GB and NI on veterinary medicines.
A legal requirement that new legislation is assessed as to whether it impacts on trade between Northern Ireland and Great Britain and, if so, for ministers to make a statement considering any impacts on the operation of Northern Ireland’s place in the UK’s internal market.
Including a new Internal Market Assessment in the Regulatory Impact Assessment process, As part of an agile regulatory approach to benefit the whole UK. Any Regulatory Impact Assessments would need to account for any adverse effects on trade within all parts of our Union - so as to avoid Whitehall applying unnecessary regulatory burdens on business in any part of the UK.
UK Government ministerial structures to monitor and manage issues arising from the Windsor Framework or future regulatory changes and a specific role for the Office of the Internal Market to monitor impacts for Northern Ireland arising from future regulatory changes.
New UK Government-NI Executive structures to enable early identification and resolution of issues arising from the implementation of arrangements.
An Independent Monitoring Panel to provide oversight of the implementation of new arrangements so that Government and other authorities are held to account for delivering it in a pragmatic, proportionate way without gold plating.
A strengthened independent review of the Windsor Framework underpinned by a statutory duty to initiate the review and to ensure its report is considered fully, bolstering the commitment to seek the widest basis of cross-community support for arrangements and providing another future moment to ensure that solutions are ones that can achieve broad support.
For further information, see House of Commons Library Research Briefing 1 February 2024 –
https://commonslibrary.parliament.uk/research-briefings/cbp-9955/