 Good afternoon everybody and you're very welcome to this webinar being conducted on behalf of the Institute for International European Affairs in Dublin. I'm delighted that our guest today is Dr Andrew McCormick who is a former director general of international relations and the lead official on Brexit for the Northern Ireland Executive, a post which he took up after a very distinguished career in the Northern Ireland civil service. Andrew will speak for about 20 minutes or thereabouts and then he'll take questions and answers and we'll finish about about four. The whole session, both the initial chat and the question and answer are on the record and please feel free to ask your questions via the Zoom platform and we'll get to them after Andrew's initial presentation. Andrew you're very welcome. Many thanks indeed. It's very good to be the host. I'm very grateful to IIEA for this opportunity. There's been so much comment, many events on the Windsor framework and in the very short space of time it's been around and I'm just very privileged to have this opportunity to contribute and I hope that we'll have an interesting discussion when we're into the Q&A phase. So just by way of outset, the framework achieves a delicate balance in both practical and constitutional terms. It's quite a big if it's applied as it's written and the hope and expectation is that it will lead to de-dramatisation, to borrow a word that's got a bit of history in the Brexit debate. That's the hope that there'll be a settling down into a new stability and I think so many people especially businesses in Northern Ireland and elsewhere need stability and certainty rather than any new tensions. So I'm not intending to do a detailed legal analysis. Others have done that. I want to just stay hopefully mainly at the big picture level looking at the thing in three sections. A little bit about the practical issues around the movement of goods which are at the heart of the issue. Just briefly on the competition issues but probably take a bit longer on the whole question around sovereignty and democratic deficit and all of that given the extent of attention that there's been on that. Just important just to start remembering that there's been so many horror stories talked about why on earth should there be restrictions on this or that be it plants or soil or pets or whatever in relation between GB&NI and the short answer is and was well it's because the land border is open. That's the choice that has been made and whatever the origin of that issue. I can't be any doubt that keeping the land border open is a good thing that any attempt to do anything else would have extremely serious consequences. Whatever may be said otherwise about that. In 2019 the approach agreed in the withdrawal agreement was very simplistic. It was the full application of EU law. The breakthrough that is now represented and it's been a journey towards this. It's not come all of a sudden is to adopt a risk-based approach. Now that takes us into complexity and compromise and that's therefore difficult. It's why the fine print and fine detail of all of this needs to be understood but that has a far better chance of leading to a stable and meaningful way forward. So just on movement of goods and all those issues. The Windsor framework enables a wider scope for the green land and red land idea than I thought possible. I do claim to have originated that five years ago and there's reports and evidence of that. I didn't see then or even up to quite recently how agri food goods could be included in that concept in the green lane and what I was told originally went back in October of 2017 about the EU's zero tolerance for risk on plant and animal health related issues. That's being mitigated by a combination of information requirements, labelling and there is an important reference in the EU fact sheet to green lane agri food goods continuing to comply with EU standards. I think that's quite an important point. Certainly the balance of opening things up in a very significant way while still having proportionate and adequate protections for the single market. That's why it's so complicated and detailed but the two sides seem to have settled that that is possible and that's very important. The compromises on parcels, on pets, on medicines are very important and are at the level of practical operation so again I'm not going to go into detail on those of their significant improvements. The wider issue of at risk goods as referred to in the protocol clarification and improvement of how that works that's very very important. It's been one of the trouble spots ever since the internal market bill of 2020. Second phase then just to talk a little bit about the competition issues. Again all logical and necessary from an EU point of view if you're going to have non-violent participation in the EU single market the change that's come about on state aid is mainly a clarification of what reach back means. The need for demonstration of a material impact on risk to competition and that's helpful again given that that was such a central issue throughout the whole main negotiations between the UK and the EU on what led to the trade and cooperation agreement. The level playing field all those concepts are so important. Similarly on VAT there's compromise on some details but still important elements of protection for the EU against distortions of trade so again those are they represent logical and reasonable compromises so at that level all of those things look remarkably sensible and you know I certainly struggle to see material ways to move on what's been agreed. A lot of the emotion in all of this is about sovereignty and of course even the things we've talked about already can be looked at through a sovereignty lens if you like but just going back to first principles this actually came up in quite an interesting discussion about that yesterday in the constitution committee of the Scottish Parliament where issues around sovereignty were being discussed in the context of regulatory divergence from within the UK but in principle you know all sovereign nations maybe except North Korea they share sovereignty in many ways on the basis of judgments about their self-interest so it's inclaimed that no other country would tolerate the position that applies to Northern Ireland under the withdrawal agreement well that's just drilling for that a little bit. The position arises as a result of a sovereign decision by the UK Parliament in 2020 which reflected the withdrawal agreement in the Conservative Manifesto. The facts of what was being entered into were known they were maybe denied, distorted or downplayed by the British government at that time which remains a very serious issue but Parliament if Parliament is sovereign it had the right to approve the withdrawal agreement. Secondly the protocol had the majority the support of a majority of elected representatives in Northern Ireland so the argument that consent was not given before a constitutional change is quite weak and inextremists could have been tested by a referendum I'm not sure that's been talked about all that much because it's a difficult thing to do I just wonder how unions would react to if there had been a referendum and support by the population for the protocol so just important to think about these things in the context of the constitutional settlement that is represented by the Belfast Good Friday agreement just then on being a rule taker well the EEA countries are in different respects in different ways their differences of detail but in principle they've made a sovereign choice to align to single market rules without the power of decision over those rules because as they judged as democratic institutions this was in their interests there are three important differences that apply first of all Northern Ireland does not pay into the EU budget the other countries have not only rule taking relationship with the single market but they pay for the privilege second point is that the four freedoms in relation to the single market aren't being applied in Northern Ireland especially freedom of movement was probably one of the most controversial issues throughout the whole of the Brexit debate and Northern Ireland has uniquely participation in the single market without the obligation to accept free movement of Labour and what we were told back in the early stages of our engagement as the Northern Ireland civil service with the EU post-Brek post that referendum we were told that Northern Ireland was just about small enough for exceptional treatment to be granted and that's I think an important point it certainly was an important point of my mind going to Edinburgh quite like quite a lot of what we've got the other third point that's different of course is that Northern Ireland is a region rather than a country so while from Norway the choice is simple they have the choice between staying in dynamic alignment or in extremist losing their participation in the single market so that's our it's a straightforward choice for Northern Ireland as a region of the UK the issues are potentially more invidious it might be which market to stay allowed to and that's why this does require much more thoughtful and detailed analysis and why I think it's worth pulling into stone and break and what all that all means there's been very good and detailed analysis presented by Jess Sargent from IFG by Sam and I sure would call on Murray and others that they've done super work in analysing all the tests stages and criteria stepping stepping back from that detail does seem to me that we're looking at what I would call a cliff edge risk uh if you speaking as a as a you know sometime occasional hill walker or cliff walker you walk too close to the edge the consequences can be catastrophic if you walk a reasonable distance away from the edge the risk is negligible so that just affects a perspective on this and behaviour and I would also have to say I think I think the whole issue is probably harder in theory in the abstract than it will be in practice I would be surprised if most of what happens looking ahead on the evolution of regulatory alignment most of the changes will be technical and uncontroversial and obviously a lot depends on how the UK perceives these things and what serves their self-interest even with the freedoms they have under the trade and cooperation agreement to diverge which was obviously what they would regard Brexit as being all about so just thinking about those scenarios and the flow diagrams there there's been some brilliant work done I think cutting to the end point potentially difficult point that arises would be if after all tests and hurdles and consultations and negotiations that are referred to and in a highly exceptional case what happens if something arises which can't be resolved and paragraph 64 of the UK command paper and some of the Secretary of State's comments would suggest that there's a need for frost community vote in the Nile Assembly to adopt positively a change that's emerged which has been put to the test in this process now when I first thought about that thought well well hold on a moment how can it be democratic for a minority in Northern Ireland to prevent something that a majority might favour because you could have a whole philosophical debate about majority rights as well as minority rights that's one of the books on my shelves that actually addresses that question it's fascinating and is that I think in fairness though we should only reach that point if all the tests have been applied and so we are looking at something which has material impact have significant effect on the at least the perception if not the reality of the of Northern Ireland's place in the UK but it's also will only arise if it's essential for ongoing participation in the single market otherwise the risk of retaliation or consequences would not arise so I go back to 1992 and I would add a small part in the work alongside the Mayhew talks on the design of the Strangerman institutions the question we always looked at in that context was what's the default what happens you can design all sorts of elaborate processes what if there's no agreement what applies and what we adopted and this actually does is hardwired into the decision making and with the executive in the assembly under the good Friday agreement standard answer is that if there's no agreement the status quo remains so on the one hand it can be argued that in first principles that where a major concern rises storm and break is invoked then correctly cross community agreement should be required to complete the change I think the alternative the other other way could be put maybe the question is whether the status quo which should be the default is that the precise set of regulations that has apply on one hand or is it the principle of dynamic alignment with the single market and that it seems to me there's still scope for debate as to as to which way to look at it and I don't have a technical answer to that I think that's something that really needs further debate and the even paragraph 64 I mentioned was a need for detail on this to emerge and be brought through the parliamentary process I just wonder if it might be better for the first vote at the level of principle which is scheduled for next year the vote on consent as originally provided for in the protocol might be better for that to happen before any particular test arises maybe that's a natural thing anyway because the hurdles that apply to the storm and break that's just I think that's that's where things are interesting and if the approach that the UK seems to be proposing is adopted then consequences the reason I describe this as a cliff edge no if it takes us back to looking at the whole debate as to how to manage an open land border without sufficient protection for the single market then that's a big issue it's not a new point in that it could have arisen under the original protocol under the provisions in relation to new EU law where agreement in the joint committee was required but the storm break widens the scope for that and opens up that possibility and I would have to say I think this not likely to much appetite for coming back to those issues in whatever town might be so far better to see if we can stabilize and get to something which is certain and stable for going for the position going forward and all of that supposes and I think there's very good reason to expect this is detailed and sincere on behalf of both the UK and the EU that this is a genuine agreement and there was a lot of discussion on the retained EU law bill yesterday in Scotland the phrase was used this is performative government and it's about the ideology of being seen to be different as opposed to the practical application of difference for which there's a respectable reasonable case so I think we everyone should be aware of the risk of mischief I'm sincerely hoping that that's not the case but I think it's important not to not to ruin that possibility and to be wary of it so stepping back really just to conclude on the total picture I do think it's a bit hyperbolic to say that dual market access is the best of both worlds that was a an unwise phrase I probably fell into the trap of using myself way back in autumn of 19 or early in 2020 I think what is factually demonstrable is that the outcome before us the Windsor framework provides a valuable and unique opportunity for Northern Ireland it wouldn't be available in the United Ireland that's again demonstrable fact and Northern Ireland really needs stability and certainty for businesses I think that should be a massively important criterion looking at all of this and having a USP is a really important thing that that's something we've never had and there's more hope and expectation of that through the Windsor framework than I can remember important also to recognize that any evaluation of this proposal can only be meaningful if there's a viable alternative and if we accept the trilemma and the UK has the two that the UK chose actively consistently were avoiding a hard land border and they've been even in recent months very clear and consistent that is one of their choices and the choice of leaving the single model across the union as at least for Great Britain then if you choose the those then something like this model is inevitable isn't there's that's that's where we go and the the only question is how to de-dramatize it make it as practically manageable as as low-key as possible and I think there's awkwardnesses around some of the seven tests that I've written and talked about the active union which I think should be reasonably clear that that's not actually compatible with the 1998 Belfast Good Friday Agreement and it came into the debate because of the way the court case went on the challenge but I find it disturbing that that was referred to in the protocol bill and is in the a lot of the rhetoric that's around is that I'll ask the question is that really something we're looking at in 21st century trade policy so more generally in all the discussions over nearly seven years something like the Windsor Framework protocol about approach I haven't seen any any better idea and I think that's part of the question those put back if not this then what what what actual alternative is it available so while it's I think unwise to oversell the Windsor Framework it is complicated it does involve major compromises for an immense amount of detail but stepping back it seems to me to present a very real and significant opportunity to draw a line under a very difficult debate move forward that it is a new way forward for the UK for the relationships between the UK and the and that's my general impression and hopefully hope that that things can and will settle so that's what I wanted to say nothing I'm happy to go into questions and discussion