GRACE: What an independent Scotland could learn from the Windsor Framework

August 16 2023, by Katy Hayward

The Protocol on Ireland/Northern Ireland showed then-unprecedented flexibility on the EU’s part. It allowed Northern Ireland free access to its single market for goods and allowed a third country (the UK) to manage part of its external border.

But when the Protocol’s flipside dawned on the UK government – the controls required on movement from Britain into Northern Ireland – it tried to extract further concessions. The best it could secure, in the nick of time, was a set of grace periods on implementing the most onerous Protocol requirements. For its part, the EU was adamant that such solutions were ‘of a temporary nature and with strict conditions attached’.

But within a few months, the UK Government asserted that the ending of the grace periods could result in ‘potentially unsustainable challenges for authorities and for businesses’. The extension of the grace periods (by unilateral and then joint decision) created the space necessary for both sides to come to an agreement as to what could be workable: the Windsor Framework announced at the end of February 2023.

As with the Protocol, the Windsor Framework allows Northern Ireland goods to circulate freely across the Irish border and thus into the EU. But where it differs from the Protocol is that it also allows flows of goods into Northern Ireland from Britain that would not be allowed into the EU (e.g. chilled meats). These must come through a ‘green’ channel to be accessed only by pre-authorised traders.

On the face of it, this is breaching a fundamental tenet of border management because, in effect, there is no border for such goods. If they enter Northern Ireland legitimately through the green channel, there is apparently nothing to stop them from then moving illegally into the EU across the Irish land border. This is ‘grace’ itself rather than a grace period. How come? Let’s consider that here using the acronym ‘GRACE’.

Beyond grace periods

Geography matters. The EU has been able to assess the level of risk to its Single Market from third country goods entering Northern Ireland as low. This is wholly connected to the fact that Northern Ireland is separated from the rest of the UK by sea. Ireland/Northern Ireland is an island and thus the overall assessment of risk has factored in that anything going into the wider EU Single Market has to get there via ship or plane. Could this be significant beyond the unique case of Northern Ireland? It cannot be ignored that, for an independent Scotland, the island nature of Great Britain would also matter. Scotland would have a land border with a third country (England), but its goods heading for the EU and the rest of the world would have to go via sea and air (unless using the ‘land bridge’ of England, in which case the checks and controls would be there anyway). If applying for EU membership, Scotland’s geographical position would have to be considered when assessing the levels of risk to the EU single market associated with managing its land border.
Relationships matter too. The building of trust between UK and EU politicians and officials was all-important to the Windsor Framework, as was the ability for the EU to finally believe that the UK was acting in good faith. One thing spelled out in the joint political declaration on the Windsor Framework is the importance of engagement with stakeholders. The building of trust and confidence in key relationships is vital to allowing the conditions for flexibility. If an independent Scotland were looking for some ‘grace’ in the management of its borders, it would need to have long-invested in relationship-building with authorities and agencies on both the EU and British sides.
Access to relevant data is crucial. The effectiveness and efficiency of border management depends on the information that border agencies have about movement across their borders. When the UK finally gave the EU access to data on goods movement across the Irish Sea, it opened up much more flexibility from the EU: the EU could then make an informed assessment as to the level of risk associated with GB-NI movement.
Conditions on that flexibility are in place and strict. Post-Windsor, the Irish Sea border will be managed in a way that is more light-touch than most external borders. Nevertheless, larger permanent border control posts will have to be built in designated Northern Ireland entry/exit points (e.g. Larne and Belfast ports). The EU is watching closely for ‘timely and faithfully implementation’ of all such elements of the deal.
Evidence is key. For Northern Ireland, evidence was gathered by both the UK and EU in terms of the difficulties with the Protocol and the goods moving to and from it. This enabled the EU to make an informed judgement as to where showing flexibility would relieve the most pressure (e.g. on GB parcels to NI consumers). To return to the imagined case of Scotland: detailed evidence will be needed on the flows and nature of movement across its borders long before negotiating EU accession even begins.

It won’t be easy

Needless to say, drawing any lessons from the Windsor Framework for elsewhere must be done with great caution. The EU has been at pains to avoid any impression of precedent-setting. And it has been far from flexible for other accession states when it comes to border management.

Furthermore, in the case of an independent Scotland, it is doubtful that either the British Government or the EU would be incentivised to make it too easy to untie knotty border problems. Nevertheless, even if flexibility on the grounds of GRACE is not offered as an end state, it could shape the basis for the transition process to Scotland’s EU membership. A period of grace if you will.