Lisa Claire Whitten, Orla Kelleher, Alison Hough, Mary Dobbs and Ciara Brennan

In ‘Non-diminution, dynamic alignment and cooperation: exploring the potential of the Protocol on Ireland/Northern Ireland to protect the environment’, we sought to investigate the potential for the Windsor Framework (aka the Protocol on Ireland/Northern Ireland (NI)) to be used to help protect the environment in NI (and potentially beyond). This is essential considering the state of the environment domestically and globally.

Environmental governance in NI has displayed significant flaws historically and the environment itself is a cause for concern, with considerable degradation across almost all indicators. Into this mix came Brexit, along with the political instability across the United Kingdom (UK) (and extended period of collapse of the Executive in NI) and a pushback across Europe to the recent ‘green wave’. Brexit, in particular, poses numerous challenges for effective environmental governance in NI and across the island of Ireland, as it impacts a range of environmental standards, rights, safeguards and governance structures internally and on a cross-border basis. It raised the potential for a decline in environmental governance and thereby also standards – notwithstanding the original patch job undertaken by the UK’s European Union (EU) Withdrawal Act 2018. There is clearly therefore a need to examine potential pathways to address and negate such a decline, as well as hopefully to bolster and improve environmental governance instead. Elsewhere, alternative pathways such as the 1998 Good Friday/Belfast Peace Agreement have been considered. However, this article focuses on the constructs arising from Brexit negotiations, and specifically the provisions found within the Windsor Framework, and considers how these new potential avenues could be used to offset these risks in part.

The Windsor Framework addresses a wide range of issues, not simply the environment. Some of the most significant provisions do not expressly address the environment, but might still be highly relevant and useful. Our article therefore identifies the Framework’s provisions that we consider to be of greatest relevance to the environment, being Articles 2, 5, 9 and 11 of the Windsor Framework, as supplemented, for instance, by Article 1 of the same document. Our article complements the analysis of these provisions with consideration of the interaction with provisions such as the ‘Stormont Brake’.

These provisions are not primarily focused on the environment but, nonetheless, provide some reassurance. Articles 5 and 9 have been discussed elsewhere and provide for the EU laws listed in the corresponding annexes to apply in NI, largely as if NI were still part of the EU. This includes the applicability of EU governance mechanisms, including the enforcement roles of the European Commission and Court of Justice. The Framework also provides for these laws to be updated, replaced or added to, with knock-on effects for NI. This is a form of dynamic alignment, although subject to the ‘Stormont Brake’, as discussed in our article. However, while significant, the annexes contain relatively few EU environmental laws, especially considering the extent of EU environmental law and also the real potential for externalities and transboundary effects.

Alongside these are Articles 2 and 11, which have not been considered much from an environmental perspective to date. Article 2 is already the subject of multiple investigations, reports, articles and cases, as an essential tool to uphold and maintain human rights (and safeguards and equality of opportunity). However, there is little regarding it and the environment to date as mentioned, with the authors currently finalising a research project on behalf of the Northern Ireland Human Rights Commission that is expected to be published in 2025. Crucially, Article 2 includes a non-diminution guarantee that is domestically enforceable within NI, but is dependent on provisions of both the 1998 Agreement and EU law. The focus of Article 2 is opaque, but there is real potential for it to be applied in the environmental context to help maintain existing levels of environmental protection. The precise scope and role it could play here remains to be seen: for example, could it be used to argue that regulatory divergence should not occur if this were to hinder effective environmental protection?

Finally, Article 11 is focused on maintaining the foundations for North–South cooperation, which links clearly to the aims of the 1998 Agreement, as well as a key role played by EU environmental law on the island of Ireland. Of significance, it expressly refers to the environment, highlighting the significance of cross-border cooperation in this field. While the provision isn’t targeted on individual enforcement of existing laws, the potential for review and upholding the foundations for cooperation (including in light of Article 1 of the Framework and also the 1998 Agreement) makes Article 11 an essential provision in the long-term.

As we note, overall:

'[o]f interest is the complementary but differentiated approaches across these provisions, ranging from forms of dynamic alignment (Articles 5 and 9), through non-diminution guarantees (Article 2) to maintaining the foundations for North–South cooperation (Article 11), including how they compare with international human rights non-regression norms. Three aspects are particularly striking: Article 2’s novel, domestically enforceable non-diminution mechanism; the complementary, mutually re-enforcing relationship between the 1998 (Belfast/Good Friday) Agreement and the Protocol; and the comparisons between the Protocol’s approach and NI’s previous relationship with both EU and Irish environmental law.'

These avenues are fascinating from a theoretical perspective, but are also essential to explore and understand from a practical perspective, as they may prove key tools in helping to maintain, bolster and, possibly, even improve environmental protection in NI and, perhaps indirectly, across the island of Ireland.