The Northern Ireland Protocol and Windsor Framework

John Curtis

What is the Northern Ireland Protocol?

The Northern Ireland Protocol sets out Northern Ireland’s post-Brexit relationship with both the EU and Great Britain. It is part of the EU-UK Withdrawal Agreement, the international treaty agreed between the EU and the UK, which regulates how the UK’s exit from the EU should work. The Protocol came into force on 1 January 2021.

This is separate to the Trade and Cooperation Agreement (TCA) which is the agreement that governs trade and other cooperation between the UK and the EU.

How has the Northern Ireland Protocol changed over time?

The UK asked for aspects of the Protocol to be changed after concerns arose, particularly from parts of Northern Ireland’s Unionist community, about how the Protocol would operate in Northern Ireland and the checks and controls it imposes on goods moving between Great Britain and Northern Ireland.

On 27 February 2023 after two years of negotiations the EU and the UK announced that a new agreement had been reached to change the way the Northern Ireland Protocol operates. This agreement is called the Windsor Framework.

Despite these changes made by the Windsor Framework, the Democratic Unionist Party (DUP), the largest Unionist party in Northern Ireland, refused to join a power-sharing Executive and blocked the functioning of the Northern Ireland Assembly, asking for more changes to be made to how the Protocol operates.

On 30 January 2024 the DUP endorsed a deal to restore the Assembly and Executive.

On 31 January the Government published details of the how the deal would affect the functioning of the Protocol/Framework.

How does the Protocol work?

How does the Protocol affect the movement of goods in and out of Northern Ireland?

The Protocol ensures there are no physical checks on goods that move between Northern Ireland and Ireland (and the rest of the EU). It does this by applying relevant EU Single Market rules for goods to Northern Ireland, and the EU’s customs rules.

This means that goods coming into Northern Ireland from Great Britain must provide paperwork to show they comply with relevant EU laws, or that they are not intended to move beyond Northern Ireland, and checks may be carried out to ensure they are compliant.

What else does the Protocol do?

Requires that the Belfast/Good Friday Agreement be protected “in all its dimensions” by the Protocol.
Requires the UK Government to ensure that individual rights and equality protections as set out the Belfast/Good Friday Agreement are maintained, as well as protection against discrimination as set out in six EU equality laws, and commits the UK to support the work of human rights bodies in Northern Ireland.
States the UK and Ireland may continue to operate the Common Travel Area (the movement of people between the two countries and associated rights).
Confirms that Northern Ireland is part of the UK’s customs territory and may be included in the UK’s Free Trade Agreements (though their application is subject to the Protocol).
Applies the EU’s customs code and relevant single market rules for goods to Northern Ireland, which are set out in Annex 2, and exempts goods not “at risk” of entering the EU from customs duties.
States nothing in the Protocol shall prevent the UK from providing unfettered access for NI goods moving to other parts of the UK’s internal market, and EU laws applied by the Protocol should only restrict goods moving between NI and GB “to the extent strictly required” by the EU’s international obligations.
Applies some of the EU’s VAT rules and excise rules to Northern Ireland.
Applies EU laws on energy trading so the all-Island Single Electricity Market can continue to operate as before.
Applies the EU’s state aid rules to subsidies “which affect […] trade” between Northern Ireland and the EU.
Commits both parties to support the political structures & principles for North-South cooperation as set out in the Belfast/Good Friday Agreement.
Maintains the EU’s Court of Justice’s powers to oversee the application of EU law where it applies under the Protocol.
Ensures that where the Protocol makes a reference to an EU law, it will continue to apply if it is amended or replaced; and sets out how the EU-UK Joint Committee may adopt relevant new EU single market laws that are within the scope of the Protocol. It gives the EU powers to take remedial measures if these new laws are not adopted.
Establishes a Specialised Committee responsible for the implementation and application of the Protocol, which reports to the EU-UK Joint Committee. It also looks at North-South issues, and issues relating to individual rights under Article 2.
Establishes a Joint Consultative Working Group (JCWG) that reports to the Specialised Committee. The JCWG’s main function is to act as a forum for sharing information and mutual consultation, in particular on proposed EU laws that may apply to Northern Ireland under the Protocol.
Allows the UK or the EU to introduce temporary safeguards (under Article 16) if serious problems arise from the operation of the Protocol.
Commits both the EU and the UK to counter fraud and other illegal activities.
Under the ‘Democratic Consent Mechanism’, the Northern Ireland Assembly is given the right to periodically vote on whether to keep the core of the Protocol (Articles 5-10 on the movement of goods, VAT and excise, Single Electricity Market, and state aid). The first vote is due to be held in December 2024.

Disagreements between the EU and the UK over the Protocol are subject to the Withdrawal Agreement’s dispute mechanism.

How did the Windsor Framework change the Protocol?

Some of the most significant changes made by the Windsor Framework to the operation of the Protocol in March 2023 include:

A new system of checks on goods moving from Great Britain to Northern Ireland:
- Goods from Great Britain destined to stay in Northern Ireland will go through a “green lane” and have far fewer checks and controls.
- Goods moving on to Ireland and/or the rest of the EU will have to go through a “red lane” and be subject to full controls and checks.
- Checks and controls on agri-food (food and other agricultural products) were simplified. UK public health standards will apply to agri-food goods moved from GB to Northern Ireland. Products whose movement to Northern Ireland was prohibited by EU law under the Protocol, such as sausages, are now be permitted. Lorries carrying agri-food products will need only a single certificate (plus a description of goods) in place of the many different certificates previously required for each product.
Individuals sending parcels to Northern Ireland to other individuals will not require customs paperwork, and online businesses sending parcels to individuals will be subject to minimal customs processes.
An EU limit on the number of reduced and zero rates of VAT that can be applied to certain goods is dis-applied in Northern Ireland. In addition, zero rates of VAT on the installation of energy-saving materials in immoveable property, such as heat pumps and solar panels, as implemented in Great Britain can apply there too.
All medicines placed on the market in Northern Ireland will now be regulated by the UK regulator, rather than the EU’s regulator, with all UK-approved medicines available for sale there.
A new “Stormont Brake” mechanism:
- 30 Members of the Northern Ireland Assembly from at least two political parties will be able to object to the application of some (but not all) updated or amended EU laws – mainly concerning goods – that would have applied automatically in Northern Ireland under the existing Protocol. This will be the case where they are “significantly different” from existing rules and have a “significant impactspecific to everyday life of communities” in a way that is “liable to persist”. Other conditions also apply.
- If Members of the Northern Ireland Assembly wish to use the Stormont Brake, the UK government has the ability to prevent the updated or amended EU law being applied in Northern Ireland. If the EU believes it should apply and the EU and UK cannot reach an agreement, the EU can take “appropriate remedial measures”.
- There is a separate process for adding new (rather than updated or amending) EU laws to the Protocol which allows the UK Government to block their application in Northern Ireland. In addition, the Government proposes (via draft regulations) that it would only agree to a new EU law applying in Northern Ireland if it is endorsed by a cross-community vote in the Assembly.
- The EU will be able to take “appropriate remedial measures” if Northern Ireland begins to diverge from EU goods rules.
The circumstances under which the EU can bring action against the UK for subsidies in Northern Ireland under the EU’s State aid rules were tightened.

What changes will the January 2024 new devolution deal make to the Protocol?

Some of the significant changes that will be implemented by the new devolution deal announced by the Government include:

Changes to the movement of goods and the UK’s internal market

A new legal duty for ministers when introducing primary legislation to consider whether it would affect trade between Northern Ireland and other parts of the UK because it would diverge from EU rules as applicable in Northern Ireland
New legislation (PDF) preventing UK Governments from entering new agreements with the EU that supersede all or parts of the current Protocol and that would create new regulatory barriers between Great Britain and Northern Ireland (this does not affect new EU laws being applied to Northern Ireland under the existing Protocol)
Changes to the UK Internal Market Act (IMA), which reinforce the policy of unfettered access of qualifying Northern Ireland goods to the Great Britain market
Tightening the definition of Qualifying Northern Ireland Goods under the IMA, to try to ensure only Northern Ireland traders benefit from unfettered access to Great Britain, and not those just re-routing goods through Northern Ireland to avoid border checks
Proposed changes (yet to be detailed) turning the ‘green lane’ for goods in Northern Ireland into an ‘internal market system’ that the Government says will reduce “burdens and formalities”. In particular, the Government is seeking EU agreement to expand the list of agri-food products from outside the UK and the EU that can enter Northern Ireland from Great Britain via this ‘lane’
A consultation on proposed legislation to extend the ‘not for EU’ labelling systems for certain goods sold in Northern Ireland to the rest of the UK
Establishing a new body IntertradeUK, to promote trade within the UK

Changes relating to Northern Ireland’s constitutional position and how the devolved institutions assent to relevant new EU legislation

Amending the part of the 2018 EU (Withdrawal) Act 2018 that provides the legal mechanism through which certain EU laws are given legal effect in the UK, to make reference to the Democratic Consent and Stormont Brake procedures set out in the Northern Ireland Protocol/Windsor Framework
Enshrining in law the UK government’s commitment to conduct an independent review after a Democratic Consent vote, if democratic consent for continuation of Northern Ireland alignment with EU rules on goods is obtained by a majority of Assembly members voting but not with cross-community support.
Establishing a new East-West Council, a forum for 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”.

Other proposals

Complete the devolution of Corporation Tax to Northern Ireland, which has “stalled” despite commitments made in the 2014 Stormont House and 2015 Fresh Start agreements
Although it does not form part of the Command Paper, a financial package was outlined by the Secretary of State for Northern Ireland in a statement on 20 December 2023, that he said was “worth an excess of £3bn”.

Where can I find out more?

All Commons Library briefings relevant to the Northern Ireland Protocol/Windsor Framework can be found on this webpage.