What’s going wrong with the Windsor Framework?

Shelves remain stocked with local bread, Irish bacon, British sausages. The warnings of British product withdrawals never came to pass. Nor did any dramatic shifts toward more Irish sourcing.

With the brief exception of some custard and stock cube shortages this year due to a political dispute over classification, there are few signs of any of the forewarned disruption.

Yet for the food businesses responsible for supplying those supermarket shelves, the difference feels stark. Around half of Northern Ireland’s food comes from Britain, meaning it’s typically battling the day-to-day uncertainty and red tape that’s now a feature of trade across the UK’s portion of the Irish Sea.

Over a third of the UK’s small businesses have ceased trading between Great Britain and Northern Ireland rather than deal with the burden, according to a recent survey by the Federation of Small Businesses, and they’re not the only ones struggling.

In April, a group of 13 retailers and food manufactures including Marks & Spencer, Sainsbury’s and 2 Sisters wrote to the EU urging them to ease the rules in Northern Ireland that “made it harder to supply the widest range of products at the best possible price”.

Given the Windsor Framework was supposed to solve all these issues, what’s gone wrong? And with a UK-EU reset now on the cards, what’s needed to get it right?

The Windsor Framework came into force to address some of the issues around the initial Brexit deal. These were thrown up by an effective border in the Irish Sea that, while ensuring no inflammatory hard border was needed on the island of Ireland, meant food and drink faced border checks and additional paperwork (not to mention a notorious ban on sausages) when trying to get into Northern Ireland.

The framework was an undeniable improvement, particularly in terms of allowing food and drink destined for sale in Northern Ireland to move with far less bureaucracy through a so-called ‘green lane’. A ‘red lane’ was reserved for products travelling on to the EU.

However, it was arguably oversold by then prime minister Rishi Sunak when he said the deal would “remove any sense of a border in the Irish Sea”. This failed to recognise that most of the issues currently plaguing food businesses two years later were foreseen – and warned of – at the time.

Red or green?

A red lane/green lane system, for example, while nice in theory, was never going to work for the hundreds of British manufacturers that send goods to Northern Ireland for further production and can therefore not prove they will stay in the UK.

For them, the red lane is the only option. While some can send pre-packed goods for retail via the Northern Ireland Retail Movement Scheme, anything outside this is typically consigned to an onerous process, with just 9% of food manufacturers using the green lane on such routes, a recent survey by the Food & Drink Federation found.

The problem is especially acute for businesses sending meat and dairy items, as they need expensive export health certificates signed off by a vet that cost around £200 per product.

The government initially offered a rebate on these to businesses who could prove their goods stayed in Northern Ireland. Yet, to the ire of businesses, this was withdrawn at the end of June.

“At the time of Brexit, the government promised that no business would have to spend more money to send goods to Northern Ireland,” says Peter Hardwick, trade policy advisor at the British Meat Processors Association.

“That, I’m afraid, was a blind lie,” he adds. “Admittedly it wasn’t made by this government, but it’s still a promise broken.”

Other shortfalls in the Windsor Framework emerged more slowly but no less predictably. It was a deal ultimately focused on simplifying the food system and therefore made no specifications for adjacent legislative areas such as the environment, packaging, and food safety.

With no clear framework for these policy areas, the EU and UK must negotiate whether a new law applies to Northern Ireland each time one emerges, typically meaning businesses are left in the dark to sit, wait, and wonder.

Right now, the most urgent is the EU’s new deforestation law (EUDR) that’s set to come into force at the end of the year and will require companies to ensure products sold in the EU are deforestation-free. The deadline for compliance is only six months away, but with still no hint as to whether British businesses will need to follow it when sending goods to Northern Ireland.

“There’s been little engagement on the EUDR and how it will be applied,” says George Hyde, trade policy manager at the FDF. “Those decisions need to filter down much, much sooner.”

It’s assumed the law will apply. The Windsor Framework gives Stormont some autonomy to block EU laws, but this can only be used when the rules have “significant and lasting effects on everyday lives”. It seems doubtful a deforestation rule for big companies would meet that threshold.

But it’s not just a question of if a law applies. It’s how it’s enforced. Supermarkets and manufacturers have grown increasingly frustrated at the lack of guidance on what checks and paperwork they need to provide for new laws, often being told one thing by the UK government only for that to be later revised by the EU several months down the line.

“Supermarkets are having to interpret laws themselves and judge what compliance looks like,” says Andrew Opie, director of food and sustainability at the British Retail Consortium. “Then the EU will turn around and say: ‘You’re not complying as we want you to. You need to make some changes.’”

Because of this, supermarkets have asked both the UK and the EU to agree on guidance before the changes come into force. “It’s incredibly frustrating to businesses investing money in compliance to be told three months down the line they’re not doing it well enough,” Opie adds.

Yet, of all the issues raising hackles over Northern Ireland, it’s perhaps ‘not for EU’ labels drawing the most heat. These are intended to prevent goods intended for sale in Northern Ireland moving on into the Republic of Ireland and, as of 1 July, they’ve been extended from fresh goods like meat and dairy to pre-packaged foods such as pizza, pesto, and soups.

This has triggered a wave of complaints, with M&S CEO Stuart Machin leading the charge. It’s “bureaucratic madness”, he said in June, lamenting “yet another layer of unnecessary costs and red tape”.

The big issue is that while meat and dairy are typically own-label items and therefore relatively easy for supermarkets to adjust, feeding through labelling changes on packaged, often branded, products is considerably harder.

Greater hassle guaranteed

While M&S has gone ahead with the relabelling, other companies have opted for alternatives. Some businesses are rerouting supply through the Republic of Ireland, while others are simply taking the hit and taking the red lane. Whatever the decision, though, greater hassle is inevitable.

Despite Machin’s understandable frustration, small businesses point out that at least M&S does trade with the EU, giving it greater visibility and understanding of the bloc’s bureaucracy compared with its UK-focused competitors.

As Alan Lowry, chair of the Federation of Small Businesses Northern Ireland, said this summer, if a company the size of M&S feels bogged down, just imagine how small firms feel. “For a large retailer, this may be a frustration. For a small supplier or producer, it could be the final straw.”

It’s clear why voices from all corners of the food industry are demanding change. While the Windsor Framework is sufficiently workable to ensure food available in Leeds is available in Lisburn, it still requires companies to invest money and effort in return for zero reward – a calculation many have unsurprisingly found untenable.

What comes next?

Given all that, there was understandable acclaim when the UK and the EU agreed in May to work towards an agrifood deal that would remove the need for sanitary and phytosanitary (SPS) checks. As Machin put it, such a deal would be “game-changing” and “can’t come soon enough”.

While the deal would force the UK to follow EU rules with little say in how they’re made, in return British businesses would no longer have to deal with red tape, border checks, and the controversial ‘not for EU’ labels. According to Northern Ireland secretary Hilary Benn, the changes would save up to £1m a month for companies using the red lane into Northern Ireland.

It wouldn’t solve everything, though. The Irish Sea border is effectively two borders: one for product standards and one for customs. While an agrifood deal could eliminate the former, the customs border will inevitably remain.

For food businesses, that’s not too bad given the process for submitting customs forms is digital and funded by the government. But hauliers are much more concerned. It’s they, after all, who carry the burden of complying with customs checks at the border, often held up in huge delays if a single form is deemed by border officials to be incorrect.

As a result, the Road Haulage Association is calling for the government to move the definition of ‘at risk’ from the border to the point of sale, shifting the responsibility away from hauliers and meaning customs forms would only be submitted once a product is sold.

“Just about all these problems around moving goods from GB to Northern Ireland go away if you move the point of risk to the point of sale,” says Martin Reid, policy director at the RHA.

There’s still much to finalise, but few in the food industry dispute an agrifood deal will be a major step forward. The immediate question is how long it will take. Talks will begin in October and are expected to take at least until the end of the year. Another 18 months is then usually allotted to allow for implementation. All in all, that means it’s widely expected to be 2028 by the time any deal is in force. For British food companies, that means another three years of red tape and border checks.

The question, then, is what exactly the UK will sign up to? In the years since the initial Brexit deal, the UK and EU have diverged on rules around pesticides, packaging, and food additives, meaning these will all have to be brought back into a single rulebook again.

Not all are likely to match. Oat producers, for example, warn they will find it impossible to follow new EU rules on contaminants given they’re based on a risk assessment using European climate, ignoring that of Scotland and northern England, says Hyde at the FDF.

The UK will be under pressure from the food industry to ensure British rules like these are carved out. But how much will Brussels allow the UK to diverge on certain rules while still getting unfettered access to the EU market? It will take a strong negotiation by British officials to achieve, something industry figures with close links to government are wary of based on recent history.

“We’d like to see the UK show a little bit of backbone,” says one source. “There seems to be paranoia about getting the EU deal over the line, like the Ming vase analogy of the election. It feels like they’re thinking: ‘Don’t cause any problems. Make sure it’s 100% compliance. Because if we don’t all do that, we might not get it done.’”

Whatever they agree, any deal is unlikely to be perfect. Difficulties will inevitably remain for some parties. But if the experience of the past two years has proved anything, it’s that what gets written in the rulebook is only half the story. How those rules are adapted, explained, and enforced can be just as important.

So, while much focus will inevitably fall on the precise details of any agreement the UK and EU eventually reach, food businesses will hope a deal also marks a new attitude among officials – in both London and Brussels.