Nearly five months ago to the day, I wrote about the Windsor Framework for Northern Ireland, which Rishi Sunak and Ursula von der Leyen signed at a hotel in Windsor in March 2023.

My post gave all the reasons why it would not work and would become a gateway back into the EU. Lo, it has come to pass.

On August 9, Northern Ireland’s News Letter reported that the Framework, set to replace the Protocol, was hurting Northern Ireland haulage companies, especially with the partial closure of Morgan McLernon hauliers in County Armagh (purple emphases mine):

Specialising in frozen, chilled and ambient storage, frozen and chilled distribution, the Lurgan-based firm is a major employer in Northern Ireland and has been providing transportation services for over 40 years.

According to the DUP MP a letter from management to workers has stated the ‘decision has become unavoidable because of the negative implications of Brexit in Northern Ireland’.

Speaking following the news, Carla Lockhart MP, explained: “I am deeply concerned to learn of the proposed cessation of activity and site closure of Lurgan hauliers Morgan McLernon in my constituency.

“Morgan McLernon is a major employer in Upper Bann and is part of the Culina group, the largest UK haulier of chilled and ambient products.

“I have been shown the letter from management to workers which explains that despite their best efforts, this decision has become unavoidable because of the negative implications of Brexit in Northern Ireland which are of course defined by the difficulties arising from the imposition of a border down the Irish Sea.

“The volume of trade movements across the Irish Sea has been falling since the imposition of the Irish Sea border and particularly since the announcement of the Windsor Framework in February this year as retailers have prepared for the introduction of the Windsor border on October 1.

“It is clear that haulage companies based in Northern Ireland whose business model is predicated on being part of the United Kingdom economy are in real difficulty because of this.

“In May it was widely reported that a leading supermarket had advised retailers that the policy of seeking to sustain supermarket operations in Northern Ireland on the basis of the green lane would be the death knell of any supermarket business and that in order to survive under Windsor, supermarkets must get as much of their product as possible from the Republic of Ireland, avoiding the border with its green and red lanes whenever possible.

“The underlying economic changes that inform this announcement clearly demonstrate how the Protocol/Windsor Framework is increasingly replacing the UK economy with a GB economy and attempting to put Northern Ireland in the same economy as the Republic of Ireland.

“I will continue to work at Westminster alongside DUP colleagues to mitigate and undo the damage caused by the Protocol/Windsor Framework and will work with employees locally to support them through what is a very difficult time.”

In response, Sinn Féin MLA John O’Dowd also expressed his deep concern over the proposed closure stating that up to 500 staff at a Lurgan haulage business could be made redundant …

The following day, Briefings for Britain carried an article by Harry Western which said the Framework is ‘an unworkable con-trick’. Excerpts follow:

As we approach the point where the WF has to be translated from a paper document to a functioning system, the evidence is mounting that our negative view of it was correct. Businesses on both sides of the Irish Sea are starting to see what it will actually involve in practice and are seriously worried. It is becoming clear that the UK government’s initial claim that the WF ‘removes any sense of an Irish Sea border’ is entirely false.

A recent report by the UK House of Lords highlights many of the practical problems that will flow from the WF, not the least of which is that many of the key details about how it is supposed to actually function are still lacking. Among other things, the report notes that:

1 The so-called ‘green lane’ which is supposed to allow a free flow of goods from GB to NI will only apply to a rather narrow set of goods – other goods will need to use the ‘red lane’ under which full ‘third country’ EU customs checking processes will operate.

We made this point ourselves back in March, but the evidence in the Lords’ report suggests the application of the green lane may be even narrower than we thought. We estimated that as much as 60% of GB goods might be excluded from the green lane, including most manufactured goods used by firms in NI. But even goods that in principle might use the green lane may be obliged to use the red lane due to the way they are transported. Goods that are grouped with other goods from different businesses with a variety of end-users may need to use the red lane as some of the other goods may not qualify for the green lane. Moreover, goods without a clear end-user, for example those destined for wholesalers, may also face the need to use the red lane.

Western’s article cites hauliers, a dairy and the Ulster Farmers’ Union, all of which say that the red lane, rather than the green lane, will become the de facto one.

Rishi had assured us it would not be like this, just as Boris assured Parliament that there would be no border down the Irish Sea. Did they intentionally lie?

Harry Western continues:

The House of Lords concludes that ‘stakeholders…argued that for many businesses the movement of goods is likely to be more burdensome than the Protocol as it has operated to date, with the various grace periods and easements in place’.

This a key point – despite the government’s claim that the WF would permanently fix the problems with the Protocol, the WF in reality means a big net increase in GB to NI trade costs and restrictions relative to the Protocol as currently implemented. The physical reality of a trade border will also be strengthened because the UK government is obliged by the WF to build border control posts in NI (despite the original Protocol containing the statement that the EU and UK had a ‘shared aim of avoiding controls at the ports and airports of Northern Ireland’).

Even if firms plan to use the green lane, they will have to join a registered trusted trader scheme, the details of which have not been finalised.

Green lane checks will only be lightened once new labelling requirements are in place. Smaller businesses will find those requirements burdensome, read ‘expensive’. Details for those are also thin on the ground.

Combine the registered trusted trader scheme and new labelling regulations and we have a recipe for disaster:

Overall, it looks like the ‘green lane’ is a complete misnomer. It is rather, as Mark Tait of Target Transport argues, a ‘highly regulated express retail lane’ that mostly benefits large supermarkets. But even some supermarkets are unhappy. The impracticality of separately labelling supermarket goods heading for Northern Ireland has pushed the UK government to propose UK-wide labelling instead. This means imposing costs across UK businesses, even on those with no operations in Northern Ireland.

Madness!

Regardless of what Rishi told MPs in the Commons earlier this year, trade will become worse, not better. The current restrictions will continue to be onerous and will only increase:

3 Parcel movements will be subject to new checks and restrictions. Again, while the WF provisions in this area are less burdensome than those in the original Protocol (which were never implemented), they imply a marked increase on the rules that have actually been applied to date. There will be customs processes for most movements other than consumer-to-consumer ones, including those from GB businesses to NI. The impact of this is likely to be substantial – parcel deliveries from GB to the Republic of Ireland have dropped almost 70% since restrictions came into place there. Personal customer data for every parcel must be collected and passed to the EU. This is the worrying background to the UK government’s recent extraordinarily heavy-handed action to force through a statutory instrument covering NI parcel movements …

5 Plant and seed movements will continue to be heavily restricted. The movement into NI of a wide range of GB trees, including ones important for ecosystems, will continue to be restricted. GB mail order firms are unlikely to be able to restart supplying NI consumers and online shopping for plants and trees in GB is likely to end.

6 Veterinary medicine supplies remain under threat. The WF has largely kicked the can down the road here, with grace periods extended. But failure to agree a permanent solution could see Northern Ireland lose access to over half of the veterinary medicines it currently receives.

7 VAT concessions are trivial. Broadly speaking, EU VAT rules will continue to apply in Northern Ireland as will a large quantity of excise rules. Bizarrely, NI will also now be the only part of the UK not to have duty-free sales on flights to and from EU countries. The WF emphatically does not restore the UK’s ability to set tax rates across the whole UK without EU permission, representing a clear and substantial breach of national sovereignty.

No wonder Ursula von der Leyen was all smiles when she signed the Windsor Framework:

James Webber of Shearman and Sterling argues that a battery factory in GB that received state aid might be caught by EU state aid rules if the cars using the batteries were sold in NI. He further notes that the EU could challenge such subsidies for up to ten years and that given this risk such a firm might feel the need to notify the EU Commission of these subsidies – leading on to a reference of the case to the European Court of Justice which is likely to make an expansive interpretation of the rules (with no account necessarily taken of the ’Interpretative Declaration’).

The House of Lords concludes that ‘the issue may ultimately be tested in the courts’ and that legal uncertainty could have a ‘chilling effect on investment’.

The UK Government said it was great news that the Framework was removing ‘1,700 pages of EU law’, but:

when pressed it has been evasive and unable to produce a list of laws that have been disapplied. In fact, the great bulk of these laws remain in place in NI and have been ‘removed’ solely in relation to certain goods moving from GB to NI and then only in specific circumstances (if using the green lane). The House of Lords concludes that only ‘a small number of EU rules have been disapplied in NI in their entirety’ and (perhaps generously) says that government claims in this area have caused ‘confusion’.

The Government said that the Stormont Brake — a veto — was a breakthrough, but it would be very difficult not only to use but also to apply:

In the Lords’ report, James Webber of Shearman and Sterling notes that ‘the Stormont Brake does not apply to all EU laws across the whole of the Protocol…those excluded include VAT, the customs code, the single electricity market, state aid, trade and defence’ – a very wide range of exemptions. The Lords’ report also confirms that the Stormont brake does not apply to the large existing body of EU laws imposed in NI under Annex 2 of the Protocol.

Limitations on the brake’s use are severe. The Lords’ report concludes that ‘the conditions which must exist for the Stormont Brake to be pulled set a high bar for its use…it is the UK Government, not the Northern Ireland Assembly, which retains the power to exercise a veto, and…a notification from Members of the Legislative Assembly (MLAs) can be set aside by the Secretary of State for Northern Ireland in a number of circumstances. Furthermore, any exercise of a veto can result in ‘remedial action’ by the EU’.

The Government also claimed that the role of the European Court of Justice (ECJ) would be restricted. Alas, it will not:

… witnesses in the Lords report largely agree that the role of the ECJ in NI is effectively unchanged by the WF. As so much EU law applies in NI under the WF, a large role for the ECJ is unavoidable.

Forget a true Brexit. The Framework will require more — and deeper — regulatory alignment with the EU:

One of our main objections to the WF is that it looks designed to force regulatory alignment between the UK and the EU. A key reason for this is to prevent new trade barriers emerging between GB and NI.

Witnesses in the Lords’ report agree with this, suggesting the WF will produce a ’natural drag-along effect’ whereby the UK alters regulations in response to new EU laws imposed in NI. The WF even includes new joint UK-EU structures which seem designed to foster alignment.

The Lords’ report seems keen to prod the government in this direction too, concluding that ‘we urge the Government and the EU to undertake substantive assessments for all planned legislation of the impact of regulatory divergence on Northern Ireland’ – a sure-fire recipe for slowing or preventing regulatory change in GB. The report also worries about the negative impact on the competitiveness of NI firms of being forced to impose EU regulations while GB firms – including those selling into NI via the green line – do not. It urges the government to explain how it will ‘address’ this issue which looks like a veiled request for alignment too.

Perhaps that is the reason why Kemi Badenoch, the Secretary of State for Business and Trade, announced earlier this summer that there would be no bonfire of EU laws.

The article brings up the aforementioned partial closure of Morgan McLernon:

The recent news that a major NI haulier is closing its operations with hundreds of job losses an important indicator of the direction of travel. Many NI firms whose main business is with GB will face serious cost increases due to the WF that may simply render their businesses unviable. Similarly, GB firms may simply choose to stop supplying NI entirely rather than jump through various bureaucratic hoops and engage in costly compliance processes to supply what is a small market.

Since Brexit, most GB firms have done just that. Hardly anything, even from bigger retailers outside of supermarkets, is available to ship to Northern Ireland.

It is easier for companies in Great Britain to trade with France than it is with Northern Ireland:

Trade between GB and NI is internal trade and as such involves a denser pattern of much smaller average transactions, traded by (on average) smaller firms, than trade across an international border does. As such, it is far more vulnerable to increased trade costs – and remember GB is by far the largest trading partner for NI, representing 65% of NI’s external purchases, five times more than purchases from the Republic of Ireland.

This is why the Windsor Framework will be the UK’s gateway back into the EU:

The sensible thing would be to abandon this economically damaging and constitutionally improper approach and instead go for a pragmatic option like mutual enforcement. But the much more likely outcome would be that the EU, the UK bureaucracy and commentariat, and a large body of opinion in NI will argue that the ‘solution’ is for the whole UK to align closely with EU regulations and (eventually) rejoin the EU customs union in order to reduce the trade frictions between GB and NI. This would hardly be surprising as the EU made clear when the original Protocol was put forward that its purpose was to tie the whole UK into the EU trade and regulatory system. Any damage caused to NI in the meantime is apparently of little importance.

Agreed. Last August, Rishi and Liz Truss went to Northern Ireland to debate and answer questions in the Conservative Party leadership contest. You would have thought they had visited another planet. None of the concerns of the Northern Ireland Conservatives, from trade (ditch the Protocol) to abortion (it should have been left illegal), were Rishi or Liz’s. I know more about Northern Ireland than they do, which isn’t a lot, and was appalled at the short shrift the people attending were given.

I am looking forward to the questions that the DUP (Democratic Unionist Party) MPs will ask in the Commons once Parliament reconvenes. I suspect Government ministers will give them little time, even as one haulier closes. No doubt, sadly, more haulage companies will follow Morgan McLernon’s example out of necessity. How sad.