Brexit Questions and Answers

Brexit Q&A

  1. What stage is Brexit at? What has happened so far?
  2. When did the UK leave the EU?
  3. What was agreed in the Withdrawal Agreement and Protocol on Ireland/Northern Ireland?
  4. What is the new relationship between the UK and the EU?
  5. How was the EU-UK Trade and Cooperation Agreement ratified?
  6. What is the EU single market?
  7. What is the EU customs union?
  8. What are Common Frameworks?
  9. What legislation is required to deal with Brexit?
  10. How are EU relations managed by the UK Government, is there a role for Northern Ireland?
  11. How did the UK vote on Brexit?
  12. What are the regulatory and legislative implications of Brexit for the UK?
  13. What is the Review of Retained EU law (REUL)?

 

Brexit and Northern Ireland

  1. What does the Protocol mean for Northern Ireland?
  2. What is the democratic consent mechanism?
  3. What is the Windsor Framework?
  4. How did we get to this stage on the Protocol? What were the problems?
  5. Who is responsible for ensuring the Ireland/Northern Ireland Protocol is implemented?
  6. What is the role of the European Court of Justice?
  7. What is Article 2?
  8. What is Article 16?
  9. What is the Stormont Brake?
  10. How is the Stormont Brake implemented?
  11. What does the Protocol mean for trade?
  12. What are the implications of the UK's new legislation on the Protocol?
  13. What does SPS mean?
  14. How does the EU-UK Trade and Cooperation Agreement affect Northern Ireland?
  15. How is travel affected?
  16. How does Brexit affect travel with pets?
  17. Can EU citizens continue to live and work in Northern Ireland?
  18. How does Brexit affect the Erasmus program, and international students in Northern Ireland?
  19. What does Brexit mean for supplies of medicines to Northern Ireland?
  20. What about EU PEACE funding for Northern Ireland?
  21. What are the implications of Brexit for the UK’s wider trading arrangements? How does this affect Northern Ireland?

 

What stage is Brexit at? What has happened so far?

The EU and UK reached a Trade and Cooperation Agreement on 24 December 2020. The deal was initially provisionally applied and was subsequently ratified by the European Parliament in April 2021.

The deal followed four years of UK-EU negotiations, after the UK voted in a referendum on 23 June 2016 to leave the EU. Then Prime Minister Theresa May subsequently triggered Article 50, the legal mechanism for a member state of the EU to leave the bloc.

In October 2019 the Withdrawal Agreement (including the Ireland/Northern Ireland Protocol) and Political Declaration were agreed between the two blocs and the Withdrawal Agreement entered into force on 1 February 2020, the date the UK officially left the EU. The UK entered the transition period, whereby the UK applied EU law and was treated as a member of the EU, however did not participate in the EU institutions.

During this period the EU and UK negotiated the future relationship. They reached an agreement which covers trade, cooperation on economic, social, and environmental and fisheries issues, social security, and governance. The transition period ended on 31 December 2020: at 11pm the UK left the EU single market and customs union and the new arrangements commenced. Special arrangements apply to Northern Ireland.  Find out more about Brexit and Northern Ireland by following this link.

Talks between the EU and UK have continued on various issues including fisheries, data adequacy, medicines, and the Protocol on Ireland/Northern Ireland (see below). In June 2022, the UK Government published the Northern Ireland Protocol Bill, which would disapply core parts of the Protocol.

On 27 February 2023, the UK Government and European Commission reached an agreement in principle on the Protocol on Ireland/Northern Ireland, called the Windsor Framework. This revises the Protocol in a number of areas and covers customs, agri-food, medicines, VAT and excise, plus a new mechanism for the involvement of the NI institutions.

The UK Government has indicated, given the agreement on the Windsor Framework, that it is no longer necessary to proceed with the NI Protocol Bill.

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When did the UK leave the EU?

The UK left the EU on 31 January 2020. However, under the transition period, the UK remained in the EU single market and customs union. This arrangement ended on 31 December 2020. As of 1 January 2021, the UK is no longer part of the EU single market and customs union, and its relationship with the EU is governed by the Withdrawal Agreement, and the Trade and Cooperation Agreement. Under the Protocol on Ireland/Northern Ireland, Northern Ireland remains in the EU single market for goods. The Protocol entered into force on 1 January 2021. Find out more about the Protocol on Ireland/Northern Ireland

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What was agreed in the Withdrawal Agreement and Protocol on Ireland/Northern Ireland?

The Withdrawal Agreement covers citizens’ rights, a financial settlement, and governance and dispute resolution mechanisms for the Agreement.

The Protocol on Ireland/Northern Ireland aims “to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions”. It also aims to protect the EU single market.

Under the Protocol, Northern Ireland continues to follow EU law relating to the single market for goods, and the EU Customs Code applies to all goods entering NI. This means that additional checks apply to goods and agri-food products entering NI from the rest of the UK, and EU customs formalities apply. Customs duties apply to certain goods entering Northern Ireland if they are considered ‘at risk’ of entering the EU single market. More about this issue

The Protocol includes a consent mechanism: every four years the Northern Ireland Assembly shall vote on the continued application of Articles 5-10 of the Protocol i.e. on the continued application of EU single market rules which affect trading arrangements. If the vote gains cross-community support for the continuation of the provisions, the next vote would take place after eight years. If the Assembly votes to disapply these articles, the provisions would cease to apply after two years and alternative options would be considered.  The first vote will take place before the end of 2024.

Regarding citizens’ rights, the Withdrawal Agreement allows EU citizens already living in the UK, and UK citizens living in the EU, to continue living, working, and studying in their host country.  UK citizens in the EU may have to apply for a new residence status in the EU. Likewise, EU citizens in the UK had to apply for the EU Settlement Scheme by 30 June 2021. The financial settlement ensured that financial commitments made by the UK and EU, when the UK was a member state, are honoured. The Withdrawal Agreement also made provisions for the transition period.

In June 2022, the UK Government published the Northern Ireland Protocol Bill, which would disapply core parts of the Protocol relating to trade in goods, subsidy control, the role of the Court of Justice of the EU, plus allow changes to VAT.

On 27 February 2023, the UK Government and European Commission reached an agreement in principle on the Protocol on Ireland/Northern Ireland, called the Windsor Framework. This revises the Protocol in a number of areas and covers customs, agri-food, medicines, VAT and excise, plus a new mechanism for the involvement of the NI institutions.

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What is the new relationship between the UK and the EU?

The EU-UK Trade and Cooperation Agreement covers a wide range of areas, including the ‘level playing field’ for fair and open competition, governance of the arrangements, fisheries, trade in goods, services, law enforcement and judicial cooperation, energy, mobility, social security coordination, transport, and participation in EU-funded programmes. The Agreement does not cover foreign policy, external security and defence cooperation.

The UK is no longer a member of the single market and customs union: it no longer benefits from the EU’s ‘four freedoms’: free movement of people, capital, goods, and services. The UK no longer applies EU law (except in the case of Northern Ireland) and no longer makes financial contributions to the EU, except for its participation in some funding programmes such as Horizon Europe.

An overview of the new relationship:

  • Trade in goods: UK-EU trade in goods is now subject to customs formalities, sanitary and phytosanitary (SPS) checks, and rules of origin procedures. The deal gives zero tariff and zero quota access for UK goods: this means customs duties won’t have to be paid on qualifying exports (i.e. goods manufactured in the UK, or subject to sufficient processing there).
  • Freedom of movement: UK citizens can travel to the EU visa-free for 90 days in a 180-day period. Beyond this a visa may be required. UK citizens no longer benefit from freedom of movement.
  • Trade in services: UK service providers no longer benefit from the EU ‘financial services passport’ i.e. automatic access to the single market. Professional qualifications will not be automatically recognised by EU Member States.
  • Programmes: The UK has decided to no longer participate in Erasmus and other EU programmes. It will pay to access some programmes such as Horizon Europe, the EU’s innovation and research programme.
  • Fisheries: a transition period of 5.5 years will see 25% of the value of EU catch in UK waters transferred to the UK fleet. Annual quotas will then be decided by the UK and EU: if the UK decides not to grant access to EU fishermen, the EU can retaliate and restrict access to the EU single market for fish exports.
  • Security: the UK no longer participates in EU agencies such as Europol, Eurojust, or has access to databases such as the Schengen Information System (SIS II). The UK will continue to cooperate with these agencies and the EU and UK will make arrangements to continue strong cooperation, and facilitate fast exchange of criminal record information, subject to data protection requirements. The UK Parliament Northern Ireland Affairs Committee has published a report on cross-border co-operation on policing, security and criminal justice after Brexit.

More detail about how Northern Ireland is affected

Further information:

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How was the EU-UK Trade and Cooperation Agreement ratified?  

On the UK side, the European Union (Future Relationship) Bill was published on 29 December 2020.  This gave effect to the Trade and Cooperation Agreement in law. The UK Parliament voted to pass the deal by 521 to 73 votes: alongside the Conservatives, Labour voted for the deal, arguing that the only alternative was no-deal. All other opposition parties voted against the deal, including the SDLP, Alliance, and the DUP. The Bill received Royal Assent on 30 December 2020, at the end of just one day of debate. Given the deal was reached at such a late stage – one week before the end of the transition period with a ‘no-deal scenario’ looming – there was very little time for the Bill to be finalised and for Parliament to scrutinise the deal.

As per the Sewel Convention, the UK Government sought legislative consent from the devolved administrations for the Bill. Devolved legislatures use legislative consent motions to demonstrate consent for the UK Parliament to pass a law on a devolved matter.

The Scottish Parliament agreed not to consent to the Bill, endorsing a motion stating that it “would cause severe damage to Scotland’s environmental, economic and social interests”. The Senedd passed a motion noting that the “damaging deal does not reflect the aspirations of the Senedd” and regretted it was not in a position to determine legislative consent, given the short notice. The Northern Ireland Assembly debated a motion brought by the Executive on the Agreement on 30 December and agreed by 47 votes to 38 to an amended motion:

“That this Assembly takes note of the Trade and Cooperation Agreement between the United Kingdom and the European Union; rejects Brexit, in line with the democratically expressed view of the people of Northern Ireland; notes that this deal will mean new barriers to trade and other negative consequences for Northern Ireland’s economy and society; and calls for the implementation of the Protocol on Ireland/Northern Ireland, positive efforts to make arrangements work for all the people of Northern Ireland, and for this Assembly to decline legislative consent to the British Government to impose the European Union (Future Relationship) Bill, their inferior trade deal and their Brexit against the will of the people of Northern Ireland.”

On the EU side, EU member states and the European Parliament had to consent to the agreement. The European Commission proposed to apply the agreement provisionally. The European Council (made up of the 27 EU leaders) authorised the provisional application. European Council President Charles Michel and European Commission President Ursula von der Leyen signed on behalf of the European Union.

The European Parliament’s International Trade (INTA) and Foreign Affairs (AFET) Committees, as well as other technical Committees, scrutinised the deal and a resolution was prepared by the UK Coordination Group and the Conference of Presidents. A consent decision was voted on by the Parliament at the end of April 2021 and was adopted by 660 votes for, 5 against, and 32 abstentions.  Finally, the Council adopted a decision on the conclusion of the agreement.

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What is the EU single market?

The European single market has no internal borders or regulatory obstacles to the free movement of goods and services. The single market includes the 27 member states of the EU, as well as other countries such as Switzerland, and Iceland (which is part of the European Economic Area). The UK was part of the single market during the transition period. Northern Ireland will remain in the single market for goods. The EU single market rests on ‘four freedoms’: free movement of goods, capital, services, and people. For example, there are no customs duties on goods moving between member states, and EU citizens are free to travel, work, and live in other EU countries.

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What is the EU customs union?

The EU customs union is made up of the 27 EU member states which impose a uniform single customs policy on goods entering the EU from third countries (countries which are not EU members, and are outside its single market and customs union): primarily this means the countries apply a common external tariff, and common trade quotas. The customs union enables the single market to operate properly. Trade between individual EU member states is free of customs duties. EU trade deals are negotiated by the European Commission on behalf of the bloc.

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What are Common Frameworks?

Common Frameworks and the Internal Market Act 2020 are designed to enable the functioning of the UK Internal Market. The UK Government has calculated that there are 154 areas of EU law which intersect with devolved competences (i.e. areas where powers have been devolved to administrations in Scotland, Wales and Northern Ireland). EU legislation previously provided a degree of consistency across the UK. Common Frameworks are an “agreed common approach” to these areas previously governed by EU legislation, and will ensure a coherent approach to regulation, while allowing devolved administrations to diverge to some extent in their implementation of the rules. 

According to the UK Government, the Frameworks will be “based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent”. The Internal Market Act 2020 acknowledges the role of Frameworks and allows for some regulations to be excluded from the market access principles if agreed through the Common Frameworks process. The Scottish Government is banning certain single use plastics from 1 June 2022. They made the first formal request to exclude these items from the market access principles, which was granted. The Internal Market Act operates on the basis of two principles: non-discrimination and mutual recognition. Non-discrimination means that regulations in one region of the UK should not discriminate against goods or services from another region of the UK. Mutual recognition ensures that any goods and services sold legally in one part of the UK can also be sold in any other part of the UK.

More information about Common Frameworks can be found on the Brexit and Devolution page by following this link.

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What legislation is required to deal with Brexit?

A significant amount of primary and secondary legislation is required to deal with Brexit and ensure the functioning of the Protocol on Ireland/Northern Ireland. The European Union (Withdrawal) Act was passed in 2018 and as of 31 January 2020 repealed the European Communities Act of 1972, ending the supremacy of EU law in the UK. It converted EU law into domestic law – this was important to ensure some continuity and certainty in areas previously covered by EU law.  The EU (Withdrawal Agreement) Act 2020 gave legislative effect to the provisions of the Withdrawal Agreement agreed between the UK and EU. The European Union (Future Relationship) Act 2020 gave the Trade and Cooperation Agreement legislative effect.

A series of other Bills and Acts have already, or are in the process of being passed to take account of new UK policy in areas previously governed by EU law. These include the Agriculture Act 2020, the Fisheries Act 2020, the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, and the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, as well as the Internal Market Act 2020, Trade Act 2021, and Taxation (Post-transition Period) Act 2020.

On 13 June 2022, the UK Government published the Northern Ireland Protocol Bill, which would disapply core parts of the Protocol relating to trade in goods, subsidy control, the role of the Court of Justice of the EU, plus allow changes to VAT. The Government also published a policy paper and explanatory notes for the Bill, as well as its legal position. The UK Government has indicated, given the agreement on the Windsor Framework, that it is no longer necessary to proceed with the NI Protocol Bill.

Subordinate legislation made at Westminster is through Statutory Instruments or SIs. Scrutiny of SIs is a matter for the UK Parliament.

Subordinate legislation made at the Northern Ireland Assembly is through Statutory Rules which are laid by Northern Ireland Executive Departments, in accordance with powers granted in the primary legislation.

You can find more information about the Statutory Rules and Statutory Instruments relating to Brexit and Northern Ireland by following this link.

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How are EU relations managed by the UK Government, is there a role for Northern Ireland?

International relations are a reserved matter, i.e. the responsibility lies with the UK Government and Parliament, rather than with the devolved administrations. David Frost was the UK’s Chief Negotiator with the EU, leading the team in the Cabinet Office which worked on the future relationship negotiations. Prime Minister Boris Johnson and European Commission President Ursula Von der Leyen were the most senior political figures involved in the negotiations.

On 1 March 2021, David Frost became Minister of State in the Cabinet Office with responsibility for oversight of the implementation of the Trade and Cooperation Agreement and the Withdrawal Agreement, including the Protocol on Ireland/Northern Ireland.  Lord Frost held overall responsibility for UK relations with the EU until his resignation in December 2021. At this point, the UK Foreign Secretary (which was then Liz Truss) took over ministerial responsibility for the UK’s relationship with the EU and became co-chair of the Withdrawal Agreement Joint Committee, and the Trade and Cooperation Agreement Partnership Council. In September 2022, Liz Truss became Prime Minister and appointed James Cleverly as Foreign Secretary. Cleverly was re-appointed to this role under Rishi Sunak, who became Prime Minister in October 2022.

In the New Decade, New Approach agreement, which restored devolved government in Northern Ireland, the UK Government committed to ensuring that members of the NI Executive would be invited to take part in meetings of the Withdrawal Agreement Joint Committee where Northern Ireland specific matters are being discussed, and where the Irish Government is present as part of the EU delegation.

The Joint Ministerial Committee on EU negotiations - JMC(EN) - was established to discuss matters relating to the UK’s exit from the EU and to provide for political engagement on these matters. It was made up of Ministers from the UK, Scottish, and Welsh Governments, and the Northern Ireland Executive. The JMC (EU negotiations) met six times in 2020.

In January 2022, the UK Government (UKG) published the conclusions of the review of intergovernmental relations (IGR), which was jointly conducted by UKG and the devolved administrations.  Several new Interministerial Groups (IMGs) are established, including an IMG on EU-UK relations.

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How did the UK vote on Brexit?

In the referendum on 23rd June 2016, the UK voted by 52% to 48% to leave the EU.

Regional breakdown of the results:

  • England: Leave 53%, Remain 47%
  • Wales: Leave 53%, Remain 47%
  • Northern Ireland: Remain 56%, Leave 44%
  • Scotland: Remain 62%, Leave 38%

Source: BBC News

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What are the regulatory and legislative implications of Brexit for the UK?

While the UK was in the EU, it followed EU regulations in a wide range of policy areas, including agriculture, goods, consumer protection, competition, subsidies and environment.  Following its departure, the UK can now legislate differently in these areas, and the devolved regions of Northern Ireland, Wales, and Scotland also have more powers to legislate in devolved policy areas which were previously governed by EU law. You can find out more about this on our page on Brexit and devolution, and see laws relating to Brexit which the UK Government has passed on our legislation page.

Policy divergence refers to differences in regulations or standards. Under the Protocol on Ireland/Northern Ireland, Northern Ireland must follow EU single market rules for goods. Meanwhile, the UK Government has expressed its desire to diverge and deregulate: its ‘Benefits of Brexit' document set out how it plans to regulate differently following its departure from the EU.

The Retained EU Law (Revocation and Reform) Bill was introduced to Parliament in September 2022. The Bill would end the special status of retained EU law, which the Government says “will enable [it] to remove years of burdensome EU regulation in favour of a more agile, home-grown regulatory approach that benefits people and businesses across the UK.”

More information:

The House of Commons European Scrutiny Committee and the House of Lords Sub-Committee on the Protocol on Ireland/Northern Ireland consider EU documents deposited by the UK Government in Parliament which fall within the scope of the Protocol i.e. EU regulations which will apply to Northern Ireland and which may increase divergence between NI and the rest of the UK. You can find out more on the work of these Committees on their respective websites [European Scrutiny Committee, Protocol on Ireland/Northern Ireland Sub-Committee]

The UK in a Changing Europe think tank has a tracker which monitors divergence between the UK and the EU, and its consequences.

Active and passive divergence is also sometimes discussed: ‘active’ divergence refers to when the UK actively changes its law to move away from EU regulations, while passive divergence refers to when the EU changes its laws and the UK does not ‘keep pace’.

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What is the Review of Retained EU law (REUL)?

Retained EU law refers to EU law (as it was on 31 December 2020) which was converted into UK domestic law by the EU (Withdrawal) Act 2018 when the UK left the EU. This aimed to provide legal certainty in the immediate period following the UK’s exit from the EU. It is also sometimes referred to as a ‘copy and paste’ of EU law onto UK statute books. In September 2021, the UK Government announced a review of both the status and substance of retained EU law. More information on this review was given in December 2021. The Government has published a dashboard of retained EU law, and introduced the Retained EU Law (Revocation and Reform) Bill to Parliament in September 2022. The Bill would “sunset” the majority of retained EU law so it expires on 31 December 2023, unless preserved. On 10 May 2023, Minister Kemi Badenoch announced a “new approach” for REUL and amendments to the Bill: the sunset date would be replaced by a list of approximately 600 laws which the Government intends to revoke at the end of 2023.

Read more on this subject in the Commons Library briefing on the Retained EU Law Bill.

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Brexit and Northern Ireland

Given that Northern Ireland is the only part of the UK which shares a land border with the EU, it faces unique circumstances as a result of Brexit. The Protocol on Ireland/Northern Ireland aims “to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions.” Under the Protocol, Northern Ireland stays in the EU single market and still applies many EU laws and regulations.

What does the Protocol mean for Northern Ireland?

The Protocol on Ireland/Northern Ireland aims “to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions”. It also aims to protect the EU single market. Northern Ireland remains a part of the UK customs territory, while enforcing the EU Customs Code. NI remains in the EU single market and accordingly applies the necessary regulations and checks. The region also remains part of the Single Electricity Market. The Common Travel Area between Ireland and the UK is maintained.

There are a wide range of views on the Protocol among Northern Ireland’s political parties and businesses. You can view statements from NI’s political parties by following these links: DUP, Sinn Féin, Alliance, UUP, SDLP, TUV, PBPA.

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What is the democratic consent mechanism?

The Ireland/Northern Ireland Protocol contains a ‘democratic consent mechanism’. This means that after four years the Northern Ireland Assembly will vote on whether to retain Articles 5-10 of the Protocol - the provisions under which NI applies EU single market regulations and the EU customs code. If the vote passes with cross-community support, the next vote will take place after eight years. If the vote passes by a simple majority, the next vote will be in four years. If the Assembly votes not to continue the provisions, they will cease to apply after two years and ‘new arrangements’ will be put in place.  The first vote will take place before the end of 2024.

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What is the Windsor Framework?

The Windsor Framework revises the Protocol on Ireland/Northern Ireland in a number of areas. You can read more about the Protocol here. Prime Minister Rishi Sunak said the Framework, “delivers smooth flowing trade within the whole United Kingdom, protects Northern Ireland’s place in our Union and safeguards sovereignty for the people of Northern Ireland.” European Commission President Ursula von der Leyen said it “respects and protects our respective markets and our respective legitimate interests.”

It was agreed between the European Commission and UK Government in principle on 27 February 2023, and formally adopted by the EU-UK Joint Committee on 24 March 2023.

  • It establishes a red and green lane for goods moving from Great Britain to Northern Ireland. Goods which are considered at risk of then moving into the EU single market (e.g. Ireland) must move through the red lane, where full checks and controls are applied. Goods which are for end use in Northern Ireland can move through the green lane, with simplified procedures. This new scheme is based on data sharing, specific labelling, and monitoring, so the EU can safeguard its single market.
  • There are easements for retail agri-food i.e. the products you buy in supermarkets. The same food is now available in NI supermarkets as in the rest of the UK (under the original Protocol, sausages, for example, would have been banned). UK public health standards apply for supermarket products imported from the UK (under the original Protocol, these imports to NI had to comply with EU standards); but EU animal and plant health rules still apply. Other checks and controls in this area are reduced, and goods must be labelled ‘not for EU’.
  • There are simplified procedures for moving plants and agricultural machinery from GB to NI. Seed potatoes are no longer banned from import to NI from GB.
  • The agreement removes the requirement for most export declarations for goods moving from NI to GB.
  • There are simpler processes for parcels sent from GB to NI.
  • The UK Government can now set VAT rates for ‘immovable goods’ e.g. heat pumps, and tax certain alcoholic beverages. Under the original Protocol, EU VAT and excise rules applied in NI for goods.
  • The UK medicines regulator, the Medicines and Healthcare products Regulatory Agency (MHRA) will approve drugs, including innovative drugs, for the whole UK market, including Northern Ireland. The EU Falsified Medicines Directive is disapplied for medicines to NI. Under the original Protocol, there had been numerous concerns about the supply of medicines to NI, some of which had already been addressed by the EU when it changed its legislation. Read more
  • The Framework did not make legally binding changes on state aid. It clarified how and where EU state aid rules apply to subsidies granted in the UK.
  • The onerous requirements for moving pets from GB to NI were removed.

The Framework established the Stormont Brake, whereby 30 MLAs from at least two parties could petition the UK Government to stop new or amended EU laws from applying under the Protocol. Read more on the Stormont Brake

The Framework also set up additional governance arrangements: an Enhanced Coordination Mechanism to discuss VAT and excise issues; a Special Body on Goods to consider the possible impact of future UK legislation on goods for NI; and structured sub-groups in the Joint Consultative Working Group. The European Commission committed to regular engagement with NI stakeholders on EU laws applying to NI.

You can read more about these arrangements in the material and legal documents published by the EU and UK:

Other sources of information:

House of Commons Library research briefing on the Windsor Framework

 

How did we get to this stage on the Protocol? What were the problems?

Following the agreement on the Protocol by the EU and UK in October 2019, the Joint Committee decided further operational details in December 2020. This included grace periods - time for businesses to adjust to the new arrangements.

Despite this, with the Protocol in force since January 2021, businesses expressed concerns about it. It meant more paperwork, processes, and ultimately costs for businesses (for example, see evidence from the NI Business Brexit Working Group). Some politicians were concerned about its impact on sovereignty and trade within the UK. There were also restrictions and complexities in the supply of medicines to NI and movements of pets from GB to NI. Some products like sausages would have been banned under the full application of the original Protocol.

In March 2021, the UK extended the grace periods; the EU responded with legal action. In September 2021, the UK extended the grace periods again. In October 2021, the European Commission published proposals to address some of the concerns raised. In June 2022, the UK Government published the NI Protocol Bill, which would have unilaterally disapplied key parts of the Protocol; the EU responded with legal action.

In January 2023, the EU and UK reached a key data-sharing agreement, which underpins some of the arrangements in the Windsor Framework, which was adopted in March 2023. The Framework seeks to address the issues and concerns raised by businesses. Read more about the Windsor Framework.

 

Who is responsible for ensuring the Ireland/Northern Ireland Protocol is implemented?

Oversight bodies were established within the Withdrawal Agreement to ensure the proper implementation and application of the agreement. The Joint Committee provides a forum to resolve disputes regarding its application and if no solution can be found, disputes will be referred to an arbitration panel. The UK Foreign Secretary James Cleverly chairs the Joint Committee, alongside European Commission Vice-President Maroš Šefčovič. There are six Specialised Committees under the Joint Committee, which cover specialised areas including the Protocol on Ireland/Northern Ireland. Only the Joint Committee can make binding decisions. The third tier of governance is the Joint Consultative Working Group. This is where the EU will inform the UK about “planned [European] Union acts within the scope of this Protocol, including Union acts that amend or replace the Union acts listed in the Annexes to this Protocol” i.e. the EU legislation which applies to Northern Ireland. [Source: Protocol on Ireland/Northern Ireland]

Find out more about the governance of the Withdrawal Agreement and Protocol.

The Protocol states that the UK authorities are responsible for implementing the Protocol. It also states that EU representatives “have the right to be present during any activities of the authorities of the United Kingdom related to the implementation and application of provisions of Union law made applicable by this Protocol”.

The Department of Agriculture, Environment and Rural Affairs is the central authority for regulating imports subject to sanitary and phytosanitary checks under the Protocol.

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What is the role of the European Court of Justice?

Under the Protocol on Ireland/Northern Ireland, which is part of the Withdrawal Agreement, the European Court of Justice (ECJ) and European Commission have oversight of the application of EU law in Northern Ireland and have powers to ensure compliance with EU rules. In a dispute on non-compliance with EU law, the EU could take the UK to the ECJ, which would make a ruling.

The UK, in its Command Paper published in July 2021, called these arrangements “highly unusual” and seeks alternative dispute settlement arrangements in a “normal Treaty framework…in which governance and disputes are managed collectively and ultimately through international arbitration.” In June 2022, the UK Government published the Northern Ireland Protocol Bill, which would disapply core parts of the Protocol, including the role of the Court of Justice of the EU.

The EU says that the European Court of Justice is the guardian of EU law and single market rules. European Commission Vice-President Maroš Šefčovič has stated that removing its role from the Protocol “would effectively mean cutting Northern Ireland off the EU's single market and related opportunities”.

Under the Withdrawal Agreement, if a dispute arises and relates to the interpretation of EU law, following initial political consultation in the Joint Committee, either party can refer it to the ECJ. The Agreement states: “The Court of Justice of the European Union shall have jurisdiction to give such a ruling which shall be binding on the arbitration panel.”

On 27 February 2023, the UK Government and European Commission reached an agreement in principle on the Protocol on Ireland/Northern Ireland, called the Windsor Framework. They committed to discuss any issues concerning the operation of the Protocol within the joint structures of the Withdrawal Agreement and to attempt to resolve matters through dialogue.

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What is Article 2 of the Protocol?

Under Article 2 of the Protocol, the UK Government committed to ensuring that there would be “no diminution of rights, safeguards or equality of opportunity” (as set out in the Good Friday Agreement) as a result of the UK leaving the EU. This means, for example, that rights such as freedom of religion and political thought, and equal opportunity, must continue to be protected in Northern Ireland after Brexit. Some of these rights are underpinned by EU law.

A ‘dedicated mechanism’ was established to implement this commitment: the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are tasked with overseeing and reporting on the Article 2 commitment. The Commissions also work with the Irish Human Rights and Equality Commission on issues relating to the island of Ireland. The Commissions published their first Annual Report in July 2022. It raises concerns about how new UK laws could risk diminishing rights covered by Article 2.

 

What is Article 16?

Article 16 of the Protocol on Ireland/Northern Ireland states: “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures.”

The Institute for Government has a useful explainer about Article 16, and the process for triggering it.

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What is the Stormont Brake?

Under the Protocol, certain laws relating to the EU single market for goods apply in Northern Ireland. In the original Protocol, when this EU law was amended or replaced, it would automatically apply to Northern Ireland. New EU laws are to be discussed and their adoption agreed by the EU and UK before they apply to Northern Ireland. 

Under the terms of the Stormont Brake, 30 MLAs from at least two parties in Northern Ireland can notify the UK Government of their wish that the “emergency brake” on EU law be pulled i.e. that they wish to stop the application of amended or replaced EU law in Northern Ireland. [See the EU-UK decision and UK Government Statutory Instrument, The Windsor Framework (Democratic Scrutiny) Regulations 2023]

The EU and UK agreed this new mechanism in the Windsor Framework and there are restrictions on its use:

  • The Northern Ireland Executive must be operational and the NI Assembly in regular session
  • The MLAs who wish to pull the Brake must explain:
    • how the notification is being made in “the most exceptional circumstances and as a last resort, having used every other available mechanism”
    • how the content or scope of the amended or replaced EU law “significantly differs” from the original law; and its application “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”
    • that they have “sought prior substantive discussion with the UK Government and within the Northern Ireland Executive to examine all possibilities in relation to the Union act; taken steps to consult businesses, other traders and civic society affected by the relevant Union act; and made all reasonable use of applicable consultation processes provided by the European Union for new Union acts relevant to Northern Ireland”

Then, if the UK Government thinks the above conditions have been met, it will notify the EU in the Joint Committee. The EU law will not apply in its new form two weeks later.

If the EU thinks the UK’s explanation is “insufficient”, it can request further information.

At this stage, the relevant law is considered as if it were a new law the EU thinks should be added to the Protocol (as in Article 13.4 of the Protocol). It will be discussed in the Joint Committee. As set out in the Government’s legislation, it must not agree to adopt the new law (i.e. it vetoes the law) unless there is cross-community support in the Assembly.

The UK Government brought forward legislation to implement the Stormont Brake. It includes provisions for a new committee in the NI Assembly, the Democratic Scrutiny Committee. The role of this committee is to “support MLAs in considering whether this new power should be used”, through scrutinising new and replacement EU acts, and engaging with stakeholders.

It also sets out a role for the Assembly in relation to new EU acts. The Assembly must pass an ‘applicability motion’ with cross-community support before the UK can agree for new EU acts to be added to the Protocol. This is unless the UK Government views there are ‘exceptional circumstances’ to adopt it, or if the new act would not create a regulatory border between NI and GB.

 

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How is the Stormont Brake implemented?

Article 13 of the original Protocol on Ireland/Northern Ireland set out arrangements for new, amended, and replaced EU law applying under the Protocol.

A decision of the Withdrawal Agreement Joint Committee on laying down arrangements relating to the Windsor Framework, adopted by the EU and UK on 24 March 2023, added new provisions to the legal text of the Protocol to implement the Stormont Brake.

Additionally, the UK Government laid a Statutory Instrument, the Windsor Framework (Democratic Scrutiny) Regulations 2023. It sets out the procedure for the Stormont Brake, and places obligations on the UK Government in this regard. It also contains provisions for the Democratic Scrutiny Committee in the Northern Ireland Assembly; and limitations on the UK Government, which cannot agree to apply new EU laws in Northern Ireland without cross-community support.

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What does the Protocol mean for trade?

Under the Protocol, Northern Ireland remains aligned with the EU single market for goods, while the rest of the UK has left the EU single market. This has made trade in goods from Great Britain to Northern Ireland more complex, as EU rules, procedures, and checks apply. Through the Windsor Framework, these were simplified. Now, only certain goods have to comply with EU customs procedures and EU animal plant and health rules when entering NI from GB. There are reduced checks and controls for retail agri-food, and goods which are for end use in Northern Ireland. These goods can move through the ‘green lane’ with fewer requirements and checks.

Foods such as sausages would have been banned for import from GB to NI under the original Protocol; they are now permitted under the Windsor Framework.

Plants and seed potatoes can be imported with simplified procedures, and there are simpler processes for parcels sent from GB to NI.

There is ‘unfettered access’ for NI businesses to the GB market – the Windsor Framework removed the requirement for most export declarations. This means NI businesses can export goods easily to the rest of the UK.

Northern Ireland has access to the EU single market for goods: movement of goods between NI and the EU remains unchanged to pre-Brexit arrangements.

The Protocol does not apply to services, which is governed in the same way as UK-EU trade under the Trade and Cooperation Agreement.

 

What are the implications of the UK's legislation on the Protocol?

On 13 June 2022, the UK Government published the Northern Ireland Protocol Bill, which would disapply core parts of the Protocol relating to trade in goods, subsidy control, the role of the Court of Justice of the EU, plus allow changes to VAT. The Government also published a policy paper and explanatory notes for the Bill, as well as its legal position. The Bill would give Ministers powers to establish green and red channels for goods, and a dual regulatory regime whereby businesses could meet either UK or EU standards. The Bill would allow for UK-wide policies on subsidy control and VAT and remove the role of the Court of Justice of the European Union in overseeing the Protocol’s implementation. The Commons Library has published a research briefing on the Protocol, including the Bill’s proposed changes.

European Commission Vice-President Vice-President Maroš Šefčovič responded saying, “There is no legal, nor political justification whatsoever for unilaterally changing an international agreement…this is illegal.” On 15 June 2022, the EU launched infringement proceedings against the UK. It also published additional details in relation to its proposals of October 2021 on customs and sanitary and phytosanitary issues for easing the movement of goods between GB and NI. In July 2022, the Northern Ireland Protocol Bill completed its stages in the House of Commons. The European Commission launched four new infringement procedures against the UK for not properly implementing the Protocol.

The UK Government has indicated, given the agreement on the Windsor Framework, that it is no longer necessary to proceed with the NI Protocol Bill.

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What does SPS mean?

SPS refers to sanitary and phytosanitary measures which are designed to protect animal, plant and public health. This ensures that food imported, and supplied to consumers and animals, is safe to eat, and free from disease. The EU has strict measures to protect its single market and reduce the risk of health threats and diseases being introduced to the market. Checks are carried out on agri-food products, live animals, and plants.

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How does the EU-UK Trade and Cooperation Agreement affect Northern Ireland?

It was already understood that the end of the transition period would bring new barriers to trade between GB and NI: the region remains in the EU single market and applies the EU Customs Code, while the UK was leaving. The question was: how much could a trade deal alleviate this friction?

The zero quota/zero tariff agreement on goods moving between the UK and EU means that the issue of ‘at risk’ goods is much reduced. However, customs formalities still apply for goods moving from GB-NI, and there is no agreement on SPS equivalence which mean these checks need to be carried out in Northern Ireland.

The agreement on security means that the EU and UK maintain some of their cooperation, but this is limited: the UK no longer participates fully in EU agencies and databases, however there are means to continue close cooperation and swift sharing of data. This is important for Northern Ireland, given the cross-border cooperation on matters such as policing and security. For more information, the UK Parliament Northern Ireland Affairs Committee has published a report on this topic.

See further questions and answers below for more detail on:

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How is travel affected?

The Common Travel Area between the UK and Ireland was established prior to the UK and Ireland joining the EU, and will continue to function: citizens of Ireland and the UK will still be able to travel and work freely in the respective jurisdictions.

If you are travelling to the EU on a UK passport, it should have at least six months validity and be less than 10 years old. Visitors can stay in the EU for up to 90 days in any 180-day period. British citizens travelling from GB with a pet will need a vet certificate and relevant vaccines. This also applies when bringing a pet from GB to NI, however there is a grace period in place. [See below for more information about pet travel]

Those born in Northern Ireland have a right to claim Irish citizenship, as per the Good Friday Agreement, and those who choose or have chosen to avail of this will be able to continue to exercise many EU rights, such as the freedom to live and work in EU and EEA member states. The rights of British passport holders will depend on the EU country’s individual immigration rules, and they will no longer have an automatic right to emigrate to an EU country. This does not apply to movement between Ireland and the UK, where the Common Travel area enables British and Irish citizens to live and work in either country.

The UK Government introduced requirements for an Electronic Travel Authorisation in the Nationality and Borders Act 2022. This requires all individuals (except British and Irish citizens) to seek permission to travel to the UK in advance. Concerns have been raised about this requirement, particularly its implications for people living in border communities, and for tourists arriving into the Republic of Ireland and hoping to visit Northern Ireland.

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How does Brexit affect travel with pets?

On 27 February 2023, the UK Government and European Commission reached an agreement in principle on the Protocol on Ireland/Northern Ireland, called the Windsor Framework. Under the Windsor Framework, the onerous requirements for bringing pets from GB-NI would be removed; a simple pet travel document and a declaration by the owner that the pet will not go to the EU would be required.

 

Can EU citizens continue to live and work in Northern Ireland?

The UK Government reached an agreement which protects the rights of EU, EEA and Swiss citizens who are resident in Northern Ireland by the end of 2020. EU citizens living in Northern Ireland by 31 December 2020 had to apply to the EU Settlement Scheme to continue living here after 30 June 2021. This does not apply to Irish citizens who maintain the benefits of the Common Travel Area between the UK and Ireland. The Settlement Scheme allows EU citizens to stay and continue to work, study and access benefits and services broadly on the same basis as they currently do.

EU citizens who arrive after 1 January 2021 to live in the UK may need a visa. The UK’s ‘point-based’ system applies to all immigrants to the UK – freedom of movement from EU countries no longer applies. There are several routes to immigrate to the UK: for skilled workers with job offers, a global talent scheme for highly-skilled scientists and researchers, and student visa routes for international students and graduates. Again, this does not apply to Irish citizens.

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How does Brexit affect the Erasmus program, and international students in Northern Ireland?

The UK Government has decided to no longer participate in the Erasmus+ programme. The UK Government has replaced it with an alternative programme, the ‘Turing Scheme’, named after mathematician Alan Turing. The Irish Government has committed to put in place arrangements so that students in NI universities and educational institutions will continue to have access to the Erasmus scheme. Students will have to register with an Irish higher education institution temporarily in order to take part, and will be funded by the Irish Government. This provision applies regardless of whether the NI citizen holds an Irish passport. This scheme is to be in place for September 2023.

EU students already studying in Northern Ireland will continue to have ‘home status’ and can avail of ‘home fee’ status for the duration of their studies here. They will also continue to have access to funding supports and loans from Student Finance NI.

From 1 August 2021, EU students wishing to study in Northern Ireland must apply for settled status in the UK or have a visa.  This does not apply to students who are Irish citizens. 

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What does Brexit mean for supplies of medicines to Northern Ireland?

Issues around medicines supply to Northern Ireland have caused concern: under the original Protocol arrangements, medicines in Northern Ireland are regulated through the European Medicines Agency (EMA), while in the rest of the UK medicines are regulated by the Medicines and Healthcare products Regulatory Agency (MHRA). Under the Protocol, EU pharmaceutical law applies in Northern Ireland. Future divergence between the UK and EU on regulation of medicines may cause difficulties, for example, if the EMA or MHRA authorises a new medicine ahead of the other. The EU and UK agreed to give the pharmaceutical industry a 12-month period until 1 January 2022 to comply with the new regulatory regime. In September 2021, the UK Government announced it would continue to operate the Protocol as it is currently – i.e. with the grace periods in place.

In October 2021, the EU published a non-paper on medicines. It said the proposal would secure the long-term supply of medicines to NI, including generic medicines, and would involve the EU changing its own legislation. In April 2022, the EU Council and the European Parliament adopted these proposals. The UK Government has said that medicines should be removed from the scope of the Protocol entirely, with strong enforcement and data sharing mechanisms to mitigate the risks of medicines moving from GB into the EU single market. It says that the EU’s package is not comprehensive and there are two supply risks relating to novel medicines and the continued application of the EU Falsified Medicines Directive (FMD) in Northern Ireland.

[UK Command Paper on the Protocol, Letter from UK Minister of State for Europe]

On 27 February 2023, the UK Government and European Commission reached an agreement in principle on the Protocol on Ireland/Northern Ireland, called the Windsor Framework. Under the Framework, the same medicines will be available to patients in Northern Ireland (in the same packs, with the same labels), as the rest of the UK.

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What about EU PEACE funding for Northern Ireland?

In the Withdrawal Agreement, the UK and EU committed to continue their support for the PEACE programme, a programme to “support peace and reconciliation and to promote economic and social progress in Northern Ireland and the Border Region of Ireland”. In October 2021, the draft PEACE PLUS programme was approved by the North South Ministerial Council. In July 2022, the European Commission adopted the PEACE PLUS programme. Financial commitments from the EU, the UK, the Northern Ireland Executive and the Irish Government make up a total funding allocation for PEACE PLUS of around €1.145 billion. The Trade and Cooperation Agreement does not cover PEACE+ funding as it is a programme under shared management. You can find more information on this topic on the website of the Special EU Programme Body, which manages the funding.

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What are the implications of Brexit for the UK’s wider trading arrangements? How does this affect Northern Ireland?

Outside the EU, the UK no longer has access to the EU’s Free Trade Agreements (FTA). The UK Government has ‘rolled over’ FTAs covering over 60 countries, which it had previously had access to as a member of the EU. In October 2020, the UK Government signed a Free Trade Agreement with Japan. It signed agreements with Australia in December 2021 and with New Zealand in February 2022. 

Under the Protocol on Ireland/Northern Ireland, Northern Ireland remains in the UK’s customs territory. The Protocol states that NI should be able to benefit from, and be included in UK FTAs with third countries, “provided that those agreements do not prejudice the application” of the Protocol. If, for example, the UK concludes a trade agreement with a third country which allows products to enter into the UK, which are prohibited by the EU single market, this could have implications for Northern Ireland’s participation in the agreement. It has been explained to the Northern Ireland Affairs Committee that many of the rolled-over UK Free Trade Agreements include ‘extended accumulation’. This allows for EU inputs to continue to be used in Northern Ireland exports.

Under the Protocol, Northern Ireland products do not count towards ‘origin requirements’ in EU Free Trade Agreements. Read more about rules of origin here. It is estimated that around 25% of NI goods imported into Ireland are by firms which export to countries with which the EU has an FTA. For the dairy and beverage sectors, the percentage of imports is 61%. [Source: ESRI paper for the Department for Economy]. In February 2021, the Northern Ireland Affairs Committee heard that the issue for products partly produced in NI and exported by Irish companies could be resolved if the EU asked its trade partners to continue to allow NI inputs to count towards rules of origin. In June 2021, the Seanad Committee on Brexit heard that “Irish whiskeys that are produced on an all-island cross-border basis will fall between the gaps. They may not qualify for the benefits of either trade agreement…companies have stopped sending products across the Border to be bottled, because by bottling it on the other side of the border they will potentially gain tariffs.” In its report, the Seanad Committee calls for a more flexible interpretation of rules of origin and “urges the [Irish] Government to ensure that the EU considers new rules of origin which protect cross-border supply chains in all future trade agreements and in reviews of existing agreements.”

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