The Daily Telegraph
Inside the deal that has both sides claiming Brexit victory
Did the Prime Minister or the EU chief come out on top in the negotiations? It depends who you ask
WAS IT Rishi Sunak or Ursula von der Leyen who took the upper hand in the negotiations over a new Brexit deal for Northern Ireland?
For the past two years, London and Brussels have been locked in trench warfare behind their red lines. The EU insisted it would never renegotiate the Irish Sea border treaty, while the Government wanted the agreement to be completely overhauled.
So, how much did the Prime Minister get from the European Commission president after the final touches were put on the “Windsor Framework”?
European Court of Justice
Under the terms of the old Protocol – the deal which governed trade in Northern Ireland after Brexit – the province continued to follow about 300 rules of the EU single market. Those laws were also overseen by the European Court of Justice (ECJ), which could put the UK in the dock in the event of any disputes.
In July 2021, Britain demanded an end to the role of the ECJ in Northern Ireland but the Windsor Framework does not strip it of jurisdiction. The ECJ remains the “sole and final arbiter of EU law”, Ms von der Leyen said as the deal was announced.
That means Brussels rejected UK calls to replace the court’s judges with an independent arbitration panel to rule on disputes, similar to that provided for in the UK-EU trade deal. However, Brussels will be reluctant to take the step of going to the ECJ, unless absolutely necessary.
Britain had called for “robust arrangements” to give Stormont a greater say on incoming laws.
Mr Sunak has secured the “Stormont brake”, which allows EU legislation to be paused if it does not have the consent of both the nationalist and unionist communities. In that case, the UK government would raise the issue with the EU, which could tweak the law or update it and possibly disapply it from coming into force in Northern Ireland.
The brake would be a last resort and there are plans to bolster levels of consultation with Northern Irish politicians and other stakeholders to prevent it from ever being needed.
The brake is not a veto that doesn’t have a time limit. Any long-running dispute can potentially be resolved by an independent panel.
Green lanes and red lanes
The new system of red lanes and green lanes for British goods crossing the Irish Sea is the biggest change in this Protocol 2.0.
Britain wanted the system set up to cut the number of checks needed on goods meant for Northern Ireland only. These would go into the green lane, without checks, while those at risk of crossing into the Republic of Ireland, and therefore entering the EU, would go into the red lane.
Brussels had signalled it could accept a similar idea, an express lane for Northern Ireland only goods but demanded safeguards. Those safeguards include clear Ni-only labelling, a trusted trader scheme for declarations and access to a real time UK database of trade flows.
If the database shows a surge in a certain product, suggesting smuggling across the border, the EU can take action to stop it.
Thanks to the trusted trader scheme and the deal, the vast majority of supermarket supplies will go into the green lane and will not have to meet EU standards.
A grace period for supermarket supplies and medicines was in place but they have now been made permanent, removing a huge number of potential checks and red tape.
Sausages, trees and medicines
Under the terms of the old Protocol, food and medicines entering Northern Ireland or being made and sold there had to meet EU standards.
Britain wanted the EU to agree to a dual regulatory system, where businesses in Northern Ireland could choose between UK and EU standards.
The final deal goes some way to achieving that.
Downing Street says that 1,700 pieces of EU law have been removed by the agreement, which obviates the need for ECJ oversight in areas such as VAT, medicines and food safety.
However, for the 3 per cent of EU rules that still apply, where it is deemed there is risk of goods crossing the border into the Republic, producers in Northern Ireland still have to follow European rules.
The deal does not cover agrifood in Northern Ireland, which will continue to follow EU rules, and is a sector that relies on cross-border trade with the Republic of Ireland.
In anticipation of the deal, the EU changed its laws to exempt medicines in order to ensure a supply of cheaper generic drugs and new medicines to Northern Ireland without EU approval.
That has now been formalised, as well as offers to exempt chilled meat products such as sausages from an EU ban, which still applies in the rest of the trading bloc.
Plants such as English oak trees and seed potatoes were banned in Northern Ireland because the UK was no longer a member of the EU.
Those restrictions will be replaced by a plant passport scheme, which is already used in Britain.
Parcels and pets going to Northern Ireland will also face lighter restrictions than under the old Protocol
Both Mr Sunak and Ms von der Leyen were keen to stress the deal means that the same food and medicines will be available on shop shelves in Belfast as in Birmingham.
VAT, state aid and excise
Powers to set VAT, state aid levels and excise duty on goods such as alcohol in Northern Ireland will be repatriated to London.
Beforehand, the Commission had to give the green light to major subsidies that the UK Government wanted to hand out. Critics had warned Brussels could also try to “reach back” and limit how No 10 spent cash in Great Britain, where companies in Ulster may benefit as a result. Downing Street said “reach back” risks were now subject to stringent tests, which would ensure that more than 98 per cent of Northern Irish subsidies would be unaffected in practice. The EU has reserved unilateral powers to take action on a case by case basis if state aid, VAT or excise is deemed to be unfair competition within the single market.
Has the Protocol itself been changed?
It depends who you ask. The EU insists that it never breached its red line of renegotiating the Protocol and the legal text of the original treaty remains unchanged.
The new Brexit deal is a series of agreements that sit alongside the Protocol – hence the “Windsor Framework” – and change how it will work on the ground.
Brussels says this deal helps implement the Protocol as agreed but the Government argues that it supersedes the old EU withdrawal treaty and amounts to legally binding changes.
As things stand, the Protocol has not changed but it will change once the UK-EU joint committee on it gives a legally binding decision to return the VAT, state aid and tax powers to Westminster.
Both keen to stress deal means the same food and medicines on shelves in Belfast as in Birmingham