27th February 2023
While we wait for the legal text of the new agreement between the United Kingdom and the European Union to be published, this is just a quick post about the optics.
It has been a long-standing joke that to get some European thing past government supporters and the popular media, all that would need to be done is to call it something like the “Winston Churchill Protocol”.
Calling this agreement the “Windsor Framework” – and getting the royal imprint – is a choreographically deft move.
But form, of course, is not substance, and the text – when it is published – will require hard scrutiny.
This is especially the case of the supposed “brake” which may or may not be really that different from the current dispute resolution procedures.
Here it is interesting that they have chosen the word “brake” – which is not a legal term of art – instead of, say, veto.
(Perhaps they thought they could make it sound like a “break clause” – which is a thing for property lawyers.)
Anyway, let us see.
But, for now, the politics is encouraging and refreshingly grown-up.
Even if this turns out to be more of a Windsor Not than a Windsor Knot.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
Here we go: https://www.gov.uk/government/publications/the-windsor-framework
One hopes that the “Windsor” label, and entanglement of the new King in deeply divisive political matters, does not cause more problems than it resolves.
The Anglo-Irish Treaty of Windsor of 1175 did not turn out so well… https://en.wikipedia.org/wiki/Treaty_of_Windsor_(1175)
And Sunningdale is nearby. The 1973 agreement there did not go well either… https://en.wikipedia.org/wiki/Sunningdale_Agreement
But let us hope for the best.
OK, so two items I’ve spotted so far: “pacta sunt servanda” expressly mentioned and agreed on the last page of the joint political declaration. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1138991/Political_Declaration_by_the_European_Commission_and_the_Government_of_the_United_Kingdom.pdf
And a discussion of the limits of “necessity” in relation to the Northern Ireland Protocol Bill in the “HMG legal position” document. “The doctrine of necessity provides a clear, temporary basis in international law to justify the non-performance of international obligations in certain exceptional circumstances. It can only ever be a temporary basis while the situation of necessity persists and the stringent conditions for its invocation are met. These include that the course of action is the “only way” to address a “grave and imminent peril” to an “essential interest” of the state, and that the state invoking it cannot have contributed to that situation. … With the Windsor Framework, implemented as envisaged, the Bill will no longer be the “only way” in which the issues caused by the previous Protocol arrangements can be resolved.”
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1138993/HMG_Legal_Position__The_Windsor_Framework.pdf
Well.
Enough hot takes: I want to see what international trade specialists think about this, particularly the draft text of the amendments to the Protocol, and the series of unilateral declarations. Seems to me the EU is still still trusting the UK to implement its side of the deal, “pacta sunt servanda”
The proof of the pudding will be in the eating – particularly if the instruments implementing this framework enable NI consumers to eat GB puddings more easily. But I doubt the DUP are going to want to play ball if the EU and ECJ are left with any kind of role in NI.
“72. And recognising the concerns that have been raised by the imbalance of the old Protocol, the Government commits to enshrining in domestic law the democratic and constitutional protections set out in this agreement, reflecting Northern Ireland’s integral place in the United Kingdom and the full restoration of Northern Ireland’s place in our internal market”
Reassured that NI’s place in the UK will be ‘enshrined’ in domestic law.
Well done Rishi Sunak. I forecast this is the thin end of the wedge. The quasi-religious objection to the jurisdiction of the CJEU is scotched and this leaves open the possibility of ever closer alignment and so ever diminishin non-tariff barriers.
On very cursory reading of the Windsor Framework ‘Explainer’ it looks superficially at least that the EU has made some concessions that it said it would never make including, in the first page summary:
“…The agreement delivers a form of dual regulation that will work for business and
consumers in Northern Ireland, based on the restoration of Northern Ireland’s place
in the UK internal market, and reflecting that by far the greatest portion of Northern
Ireland’s economic life will continue to be based on trade within the United
Kingdom….”
Dual regulation – a form of?.
Plus, the Stormont Brake – looks to be both a joint yet ‘unilateral’ Safeguard measure , in and of itself interesting.
BUT…..so much to read & digest.
BUT…BUT …..why could this framework not be offered at the time of the Withdrawal Agreement or even within a year of the WA?
If I was being cynical, I’d say that the EU have finally realised or accepted that reunification of the Island of Ireland is a long way away – ergo, giving concessions is better PR.
Surely the details of the framework should have been publicised in the first half of 2016? They must have been known back then, since Brexiteers are always so insistent that they knew what they were voting for.
If I was being cynical, I would observe that the EU was not ever going to reward Boris Johnson and Frost’s provocations with a deal.
Loose lipped talk about encouraging other EU states to leave among prominent Brexiteers turned Brexit from a major economic inconvenience into an existential threat.
And the suspicion was that the NIP might create major problems as and when a trade deal with the US and CPTPP leads to phytosanitary regulatory divergence between the UK and EU markets.
But everyone has had enough now. Our electricity interconnectors with the EU require a lasting arrangement. Horizon and defence and other issues require a lasting deal.
You were (and are) quite happy to sacrifice the interests of many small sized traders, who probably didn’t contribute a great deal to the wider economy. (I could retort the rag trade exporting to the EU, but ok…)
But the anger from medium and larger companies is also real. And is hampering long term business investment decisions, as we can see in the auto sector or chemicals. (The failure of financier Brexiteers to comprehend the difficulties of building real world industries is one of the amazing aspects of Brexit – dilettante Oxbridge superficiality at its worst).
But domestic politics overshadow everything. Sunak HAS to put the Brexit issue to bed as it continues to divide the reality-based wing of the Conservative Party, and there is no conceivable pathway to victory in 2024 without it.
To me the association is with Windsor soup. Murky, watery, unappetising, a relic from the 1950s. Appropriate.
So, it would appear that the Stormont Assembly can vote for a brake, which can then be used by the UK government to veto EU legislation affecting NI. Except the anti-EU parties no longer have a majority in Stormont, and pro-EU parties share of the electorate is growing versus the unionists because of demographic changes. The current make up of the Assembly is 53 pro-EU seats out of 90 seats in total. The EU has calculated that the “brake” will never be applied, and that therefore, so there is effectively no veto. Oh, and the ECJ apparently remains the final arbiter on any Single Market issues.
Under the terms of the deal, a Petition of Concern can be used to trigger the Stormont Brake if signed by 30 MLAs from at least two parties represented in the NI Assembly.
In this evening’s Commons debate on the deal, SDLP and Alliance MPs have already identified and expressed their concerns that this could effectively amount to a unionist veto (which could, in turn, ultimately jeopardise Northern Ireland’s unfettered access to the EU Single Market).
In today’s document, UK government say they will consult the NI parties on the precise detail of how the Stormont Brake would work.
I would propose that, in order to address the concerns about a unionist veto, the Petition of Concern to trigger the brake should require 30 signatures from at least two different parties *which should belong to two different Assembly designations* (unionist/nationalist/other).
It’s almost as if semantics play a greater part than content when it comes to the various factions within the governing party.
I’d wager a pound – possibly even €2 – that if the ECJ was renamed the Late QEII Blessed Memorial Law Chamber, they’d be more than vocal to join.
While the one hundredth part of a Euro is officially named cent, eurozone countries are free to adopt their own names according to local custom. So, for example, in France it is centime, Spain has centimo and so on. It’s a shame that the same principle was never extended to the European Union itself. Had we been allowed to refer to it as British Empire, I doubt that the referendum would have gone the way it did.
If the intent that the Stormont Brake could never be applied, or was found to be so hard as to never be achieved, I’d anticipate that the UK &EU will be in re-re-negotiaition mode this time next year. Ergo, why create such a high hurdle?
If it was created such that it never could be applied, I’m sure bad faith could then be claimed with recourse to the Vienna Convention on Treaties – I’m sure it’s a place that even the EU would not wish to go.
Besides, in 2025 the good people of NI have to have a vote on keeping the NIP /Windsor Agreement. Who knows?
The reality of electoral demographics in NI and at the Stormont assembly would indicate that the brake isn’t going to be used anytime soon, or ever. And to be honest, Sunak and even most of the tories will simply want NI to disappear as an issue again once they’ve had their “victory” and forced the EU to “concede”. There won’t be a re-renegotiation next year, too many bad memories would be stirred up of brexit incompetence too close to an election.
I don’t think the intent is that it can’t be applied. Rather, the expectation is that it will not often be applied. The hurdle is high, and the process requires both two parties in the Assembly and the UK government all to come to the view that it has been met.
And I’m not seeing the bad faith here. The intent of both UK and EU is that the brake will not often be applied. The treaty gives effect to the parties’ shared intent. Operating it in accordance with that intent would be the opposite of bad faith.
Here’s the rub – this is Northern Ireland – in the NIA itself, petitions of concern ( upon which the Stormont Brake is designed) have been invoked over 150 times since 1998.
Ok, with better faith/weather/intent & the high hurdle maybe the Brake won’t be invoked – but then Article 16 even though it hasn’t yet been invoked is viewed by many as the Nuclear Option – which of course it isn’t.
NI is quirky – very quirky both positive & negative – interesting times.
I know. But both UK and EU – assuming they are acting in good faith – want the Protocol to work. It won’t work if its operation is constantly interrupted by the application of the brake. On this point the Windsor Framework is peppered with words like “emergency” and “last resort”; it’s clear that the parties intend the brake as something to be used exceptionally, and have designed it accordingly. And, my point is, that’s not bad faith.
The Windsor Framework. Why so-called? (Yes, I know Rishi Sunak, and Ursula von der Leyen, European Commission president, sealed the agreement in the shadow of Windsor Castle.) But why Windsor? Something to do with royal approval being necessary perhaps. If so, the new protocol might be named the Sachsen-Coburg und Gotha Framework.
The ERG is expected to hold a full meeting for members on Tuesday night to decide how to respond to the Windsor framework, with a “star chamber” of lawyers assembled to scrutinise the plans for a veto for Stormont on new EU laws in Northern Ireland.
This sort of genealogical pedantry is all a bit sterile, but if we are to indulge in it, surely not Sachsen-Coburg und Gotha? Not since the demise of the crown last year.
The official name of the British royal house is still Windsor, but if you deny the late queen the right to chose the name of her house and of her offspring, as you appear to do for George V and his descendants, then Charles III is in Prince Philip’s house, and also ignoring his change to Mountbatten, that would be Schleswig-Holstein-Sonderburg-Glücksburg.
And if you don’t like dynasties choosing their own name and style, we should be talking about Wettin to September 2022, and now Oldenburg.
What the Times refer to as a “ Brexit breakthrough” this morning never even got a mention on the main French news channel last night.
Why?
Perhaps everyone should wait to see exactly what gets signed off as fundamental changes will need to be approved and voted upon by the 27 member states.
In spite of my political leanings, I’m finding myself more and more impressed with Sunak as a leader. I think what has come out of these talks is indicative of what can happen when parties negotiate in good faith.
The Stormont Brake is a stroke of genius. It really puts the onus on the unionists to frankly sort themselves out and come back to the table.
Personally, I’ve found it difficult to understand how there are even any unionists left after the approach Westminster has taken to this Northern Ireland problem, but if you’re going to call yourself a unionist, maybe try getting with the program. Unionists are now the minority. Their wishes are cannot be paramount.
“The Stormont Brake is a stroke of genius. It really puts the onus on the unionists to frankly sort themselves out and come back to the table.”
Indeed. Great move by Sunak. The DUP have painted themselves into a corner, and yet add still more paint with every hour they delay a firm response.
The DUP’s issues about the Protocol have been checkmated. Their unspoken issues about not serving under a Nationalist First Minister now face having to be brought out – blinking – into the daylight.
The next few weeks (and two months until NI’s local elections) are going to be very entertaining.
Johnson’s argument was basically, oh no, the unionists are refusing to agree to the power sharing arrangement; therefore, it is a necessity to breach our agreement in order to preserve the NI peace process.
Sunak proves him wrong at a stroke. This approach is far more practical and far less damaging. The unionists may still refuse to play ball, but so what? Stormont has failed to sit for fully two thirds of the time it has existed.
I am concerned about Article 15(2) of the Draft Decision of the Joint Committee. It appears to allow the EU rip up most of the agreement, even if we thought we had been complying with a) to c), with six weeks notice.
If the matter couldn’t be resolved by discussion, we could perhaps then use Article 1 amending Article 6 of the Protocol to take the matter to arbitration. The arbitration panel might rule the “necessary safeguards are in place to protect the Union’s internal market”. However, the EU could still leave the Article 15 notice in place.
I guess we would then be back to necessity and a new Northern Ireland Protocol Bill. It might also be hard for the Protocol to be approved the next time it needs to be by the Assembly.
Maybe that’s good enough. However, it would be better if the EU agreed now what would happen if the arbitration panel ruled against them.