DUP's Wilson says EU law is the source of all problems under the Windsor Framework

A number of DUP representatives have raised the issue since the party withdrew from the executive in protest at the protocol, although removing EU law is not explicitly mentioned in the DUP’s seven tests as a condition for a return to government.

Reflecting a possible difference of emphasis within the party, Emma Little-Pengelly didn’t specifically address EU law when asked by the News Letter if the application of EU law must stop before the party returns to government. The Lagan Valley MLA said “Whilst we are not giving a running commentary on our ongoing discussions we remain determined to see outcomes and actions from the Government that restore Northern Ireland’s place in the United Kingdom’s internal market and respect Northern Ireland’s place within the Union.

She added: “We remain entirely focused on our aims and objectives, determined to secure further progress. Our objectives include, restoring and future-proofing in law our Article 6 rights under the Acts of Union, thus ensuring our ability to trade freely within the UK Internal Market, as well as securing further measures that will strengthen Northern Ireland’s place within the Union.”

There is debate in anti-protocol circles about whether the Acts of Union can be fully restored if EU law still applies in Northern Ireland.

On Wednesday James Webber – a lawyer and expert in European regulatory law – told a Lords committee on the Windsor Framework that the deal “reflects an underlying mistake, which remains uncorrected”. He said that mistake “is to accept as the Windsor Framework does, and as the protocol did before it, the application of foreign law and foreign courts over parts of the United Kingdom.”

Mr Webber said “The practical effects of that error will worsen I think, over time”. He spoke of his concern that Northern Ireland is a “no-man’s-land” between EU and Great Britain’s regulatory systems.

Sammy Wilson says there is confusion even in government over which regulations apply in which circumstances – and that is a huge problem for businesses in Northern Ireland. “There is a lack of information available to traders, nobody is quite sure in government departments which EU laws apply”. He also claimed that many ordinarily law abiding business owners are simply refusing to complete all the paperwork and processes that they are expected to under the framework. “The rules make law abiding people become law breakers because the law is so cumbersome” said Mr Wilson.

The original protocol was aimed at avoiding customs checks on the land border on the island of Ireland, and instead moved the border between NI and Great Britain. The system operates by keeping Northern Ireland aligned to the EU’s regulatory system for goods. The Windsor Framework didn’t change that basic structure.

Opponents of the deal argue this leaves Northern Ireland vulnerable to the wider relationship between the UK and the EU which will inevitably change over time, particularly as the UK government set out in the King’s speech its intention to pursue post-Brexit trade deals across the world.

The House of Lords European Affairs Sub-Committee on the Windsor Framework also heard concerns about how well any returning executive could deal with the complexity of changing trade rules.

James Webber – who gave evidence to the committee – is one of the UK’s top lawyers in the field of UK and EU trade and competition law and a partner in Sherman and Sterling LLP. He also focuses on state aid – on which a deal was reached between the UK and the EU earlier this year under the Windsor deal. Posting on X, formerly twitter, in February he said that “The Windsor Framework has not changed the State aid rules applying under the Withdrawal Agreement. I suspect the same mistake has been made this time as in every negotiation since 2016. Secrecy has pushed crucial expertise from the room. Not an error the Commission makes.”