The Windsor Framework: Filling an Economic and Democratic Deficit

By the end of this year, members of the legislative assembly (“MLAs”) in Northern Ireland are set to vote on the terms of the United Kingdom’s withdrawal agreement from the European Union, specifically the articles related to the regulation of trade across Northern Ireland’s borders.[1] By spawning the Northern Ireland Protocol (a post-Brexit customs border between Great Britain and Northern Ireland), Brexit wrought collateral damage on Northern Ireland’s economy.[2] A recent agreement between the UK and EU, called the Windsor Framework, fills an economic and democratic deficit from the Northern Ireland Protocol by removing costly customs checks within the UK and providing for a democratic consent mechanism.[3] However, the Framework still fails to address key elements of trade such as a veterinary medicine agreement between Northern Ireland and the EU.[4] Even if the Framework is formally approved in the upcoming vote, MLAs should promptly address its omissions to ensure Northern Ireland’s trade position is strengthened for the foreseeable future.

Northern Ireland’s unique trade position within the UK is inextricably linked to its open border with the Republic of Ireland.[5] In 1998, the Good Friday Agreement brokered peace between Northern Ireland and the Republic of Ireland after decades of violence.[6] To help usher in a new era of peaceful coexistence, a key provision in the 1998 agreement held that an open border must always be maintained between Northern Ireland and the Republic of Ireland.[7] In other words, travelers, goods, and services can freely cross between the North and the South without any customs checks. However, post-Brexit, an open border now exists between a non-EU nation (Northern Ireland) and an EU nation (Republic of Ireland), putting Northern Ireland in a complicated position within UK and EU trade.[8]

The UK addressed this issue in its withdrawal agreement with the EU, enacting the Northern Ireland Protocol in 2021.[9] The Protocol essentially installed a customs border in the Irish Sea; suddenly, goods traveling from Great Britain to Northern Ireland were subjected to full EU customs checks as if they were crossing international borders.[10] Costly customs checks disincentivized Great Britain businesses from trading with Northern Ireland businesses, obstructing the “principal arterial route of Northern Ireland’s economy”: intra-UK trade.[11] Notably, Northern Ireland’s own government did not vote on approval of the Protocol, creating a “democratic deficit” within the Protocol.[12]

To rectify the Protocol’s adverse effects, the UK introduced the Windsor Framework in early 2023.[13] The Windsor Framework reduces checks for intra-UK trade, creating a “green lane” for goods coming from Great Britain and staying in Northern Ireland.[14] Meanwhile, goods destined for the Republic of Ireland or beyond will remain subject to full customs, food, and animal health checks.[15] Thus, the Framework – through its green lane for internal UK trade – removes the customs border in the Irish Sea which heavily burdened Northern Ireland’s trade post-Brexit.

Furthermore, the Framework includes a “democratic consent mechanism,” filling the democratic deficit by allowing the Northern Ireland parliament to vote on acceptance of the Framework.[16] The Northern Ireland parliament is set to vote on a motion for approval of the Framework by the end of 2024.[17] If the motion is not agreed, the Framework will cease to apply after two years.[18] If the motion is carried by a simple fifty-percent-plus-one majority, the Framework will survive, and a vote will take place in four years to determine if the Framework is still accepted.[19] If the motion receives “cross-community support,” i.e., a majority of both nationalist and unionist parties, the Framework will last for eight years before another vote.[20]

Because of its promise to remove costly customs checks for intra-UK trade, acceptance of the Windsor Framework would presumably be expected. However, recent interviews from MLAs suggest that cross-community support may be unrealistic.[21] Nationalist parties Sinn Fein and SDLP – along with centrist party, Alliance – support the Framework, with Declan Kearney of Sinn Fein saying it “saved Northern Ireland’s economy from “the worst impacts of Brexit” and is “hugely beneficial to our society and economy.”[22] However, prominent unionist parties appear ready to vote against the Framework, believing an even more robust and customized trade agreement is necessary to ensure Northern Ireland’s international trade capabilities are on par with Great Britain.[23] A Democratic Unionist Party spokesperson said the party “will not hesitate to vote against the framework,” while the Ulster Unionist Party “have always said that the Windsor Framework was nothing more than a stepping-stone to an agreement that secures our place within the United Kingdom.”[24] Thus, cross-community support appears unlikely.[25]

It is clear the Windsor Framework presents a notable improvement over the Northern Ireland Protocol. However, unionists’ concerns highlight important pitfalls in the Framework, notably the absence of a customized veterinary medicine agreement.[26] For example, if no veterinary medicine agreement is struck with the EU, half of veterinary medicines used in Northern Ireland could be withdrawn from sale by 2026.[27] To that end, even if the Framework is accepted, prompt and thorough review will be necessary to address more specific trade concerns such as veterinary medicines. Therefore, if the Framework passes via simple majority or even cross-community majority, MLAs should not idly accept the Framework as is, but rather seek to strengthen, specify, and amend the Framework.

Broadly speaking, the Windsor Framework represents a step forward for Northern Ireland’s economic and democratic standing within the UK.[28] The Framework’s democratic consent mechanism ensures Northern Ireland exercises more control over how its borders are regulated in trade.[29] Furthermore, its elimination of intra-UK customs checks alleviates Northern Ireland’s foremost obstacle to trade.[30] However, MLAs should thoroughly review key issues the Framework omits, such as veterinary medicines.[31] While the Windsor Framework is a significant step forward for post-Brexit Northern Ireland, it remains an imperfect long-term solution; accordingly, MLAs should swiftly address the Framework’s shortcomings regardless of the upcoming vote’s outcome.

Jack Flanagan is a staff member of Fordham International Law Journal Volume XLVIII.

[1] See John Manley, Stormont Windsor Framework Vote Expected to Reignite Brexit Tensions, The Irish News (Aug. 19, 2024 6:00AM), https://www.irishnews.com/news/northern-ireland/stormont-windsor-framework-vote-expected-to-reignite-brexit-tensions-X7A2AI5NMREGFMW4W5JBGBL7MM/

[2] See Windsor Framework: a new way forward, 2023, Cm. 806, at 6.

[3] See id.

[4] See Manley, supra note 1.

[5] See Windsor Framework: a new way forward, supra note 2.

[6] See The Good Friday Agreement: What is it?, BBC News (Apr. 3, 2023), https://www.bbc.com/news/uk-northern-ireland-61968177.

[7] See Windsor Framework, supra note 2.

[8] Id.

[9] See The Windsor Framework, The N. Ir. Assembly (Oct. 2, 2024 11:00AM),  https://www.niassembly.gov.uk/assembly-business/brexit-and-beyond/the-windsor-framework/.

[10] See id.

[11] See Windsor Framework: a new way forward, supra note 2.

[12] Id. at 20.

[13] Id. at 3.

[14] See The Windsor Framework, supra note 9.

[15] See id.

[16] See What is the Democratic Consent Mechanism?, N. Ir. Assembly (Oct. 2, 2024 11:00AM) https://www.niassembly.gov.uk/assembly-business/brexit-and-beyond/democratic-consent-mechanism/

[17] See id.

[18] See id.

[19] See id.

[20] See id.

[21] See Manley, supra note 1.

[22] Id.

[23] See id.

[24] Id.

[25] See id.

[26] See id.

[27] See John Campbell, Windsor Framework: Half of vet medicines could be withdrawn, Lords hear, BBC News, (Jan. 19, 2024), https://www.bbc.com/news/uk-northern-ireland-68024389

[28] See Windsor Framework: a new way forward, supra note 2, at 20.

[29] See id at 6.

[30] See id.

[31] See John Campbell, supra note 27.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.