Brexit & Beyond Newsletter

28 June 2021

Welcome to the 28 June 2021 newsletter

Today, European Commission Vice-President Maroš Šefčovič gave evidence to the Committee for the Executive Office. The EU Settlement Scheme closes on Wednesday. The Secretary of State for Northern Ireland, Lord Frost, and the EU Ambassador to the UK have given evidence to various UK Parliamentary Committees. At the NI Assembly, the Finance Committee has begun a series of evidence sessions with experts on the Protocol.

Maroš Šefčovič questioned by MLAs

European Commission Vice-President Maroš Šefčovič gave evidence today (28 June) to the NI Assembly Committee for the Executive Office. Professor David Phinnemore described it as “unprecedented” that member of the European Commission would appear before a committee of a sub-national legislature of a non-member state.

European Commission Vice-President Maroš Šefčovič speaking to media following recent meetings with the UK in London | Source: European Union

Šefčovič told the Committee, "We are willing to consider taking bold steps if the UK government demonstrates a clear and concrete commitment to implementing the protocol in full”. He took some time to demonstrate the EU’s chart on its import requirements, authorisations and prohibitions for animal products under different arrangements, and noted positive feedback he has heard from NI stakeholders on a Swiss-style SPS agreement. He emphasised that a temporary agreement would allow time to build infrastructure and hire personnel in Northern Ireland, and get access to real-time IT systems so that checks would be smoother and less intrusive.

Šefčovič views the dual market access for NI under the protocol, along with NI’s universities, strong telecoms sector, and workforce, as attractive to investors, noting the idea for an investment conference for Northern Ireland. He also highlighted that NI’s access to the single market is “cost-free..not like Norway, you don’t have to pay for access”.

Several members voiced their opposition to the Protocol. Šefčovič pointed out that both Lord Frost and he have stated that Protocol does not violate the constitutional order of the UK. He highlighted that he was at the Committee, listening to members’ concerns, and while he understands the differences in political opinion, he has yet to hear what a better solution would be. He says they want to use the Joint Consultative Working Group to inform MLAs about what is happening and also listen to their concerns. Šefčovič noted that many MEPs would like to have more direct contact with the NI Assembly. Work is ongoing in the UK and European Parliaments to establish the Parliamentary Partnership Council under the EU-UK Trade and Cooperation Agreement.

On chilled meats, Šefčovič told the Committee that he is confident that a solution to suit both the UK and EU will be found in the next 48 hours. This follows a UK request to the EU to extend the grace period for prepared chilled meats, which are banned for import into the EU single market. On steel TRQs, the Commission has proposed amendments to EU legislation so that GB-NI steel movements would fall within EU quotas.

Šefčovič said the meeting was “open, honest but at the same time…constructive”. He responded positively to a request from the Chair to return to the Committee later in the year, where he would hope to bring more items to the table which are “problem-solved”.

EU Settlement Scheme

The deadline for applying to the EU Settlement Scheme is Wednesday (30 June 2021). The scheme allows EU, EEA, and Swiss citizens who have been living in the UK before 30 December 2020 to protect their rights and continue living in the UK. In the Assembly, Justice Minister Naomi Long was asked what her department is doing to promote the scheme with vulnerable victims of crime. She noted that while the scheme is managed by the Home Office, her Department has provided support for potential victims of modern slavery and human trafficking. She also noted campaigns to raise awareness of the scheme by Citizens Advice, Advice NI, and Stronger Together EU Settlement Scheme Support Project.

 Naomi Long speaking to the Assembly | Source: NI Assembly

On 24 June, the European Court of Justice published an opinion in a case against the Department for Communities that the UK is guilty of indirect discrimination on the grounds of nationality if it refuses social assistance to an EU citizen who has been granted pre-settled status under the EU Settlement Scheme. The case relates to a Dutch-Croatian national whose application for Universal Credit was refused by the Northern Ireland Department for Communities in June 2020. The case was referred to the ECJ by the Appeal Tribunal for Northern Ireland.

From 1 July, ‘frontier workers’ - EU, EEA or Swiss citizens employed or self-employed in the UK, but resident elsewhere - who have been working in the UK on or before 31 December 2020 must apply for a Frontier Worker permit. This does not apply to Irish citizens. Frontier workers starting to work in the UK after this date will need to apply for a visa. More information can be found on the UK Government’s webpage.

The Lords European Affairs Committee has been holding an inquiry into citizens’ rights and has heard evidence in recent weeks from stakeholders, academics, and Ministers. The oral evidence can be read here.

Finance Committee hears from Protocol experts

On Wednesday, the Committee for Finance committee heard from academic experts on the Protocol on Ireland/Northern Ireland. Professor David Phinnemore of Queen's University Belfast said that many issues we see relate to the wider EU-UK relationship and the ‘thinness’ of the EU-UK Trade and Cooperation Agreement. Dr Graham Gudgin of the University of Cambridge said that the rules currently apply to all goods, not just ‘goods at risk’ and that the border in Irish sea is not a necessary consequence of Brexit, pointing to ‘alternative arrangements’, such as trusted trader schemes, tracking technology, and mutual enforcement.

Chair of the Finance Committee Steve Aiken | Source: NI Assembly

Professor Ronan McCrea of University College London noted that barriers between NI and the Republic of Ireland have increased (e.g. for services); he highlighted that change in one direction was always going to be balanced by change in the other direction. He said it will get harder for businesses in NI to do business in Ireland as there is no longer freedom of establishment, there are changes to the free movement of people, and EU and UK law will become less similar over time.

On NI’s position in relation to EU and UK free trade deals, Phinnemore said his understanding is that NI producers will have access to UK trade deals but this is not automatic for imports. Regarding EU trade deals, that wasn’t really pursued in the negotiations, and would be something for the UK Government to pursue.

The witnesses were asked on their views on making the EU-UK Joint Committee work for NI. Gudgin said the key was to widen the application of the ‘at risk principle’ to reduce checks. McCrea said with less heat and the issue kept out of the headlines, there would be more flexibility from the EU. He emphasised the importance of NI’s voice being heard in Brussels, and for NI to monitor EU goods law, and sell its access for goods. Phinnemore focused on the need to build up trust, and for the parties to go to the Joint Committee with solutions and ideas.

Brexit in the plenary

In the Assembly on Monday, Minister for Agriculture, Environment and Rural Affairs Edwin Poots was asked about construction of border control posts. Poots said that while current easements for goods moving GB-NI are welcome, “The situation will become impossible once the grace periods that are currently in place, primarily for retail goods, come to an end.” Poots noted that a decision to continue work on construction of permanent border control posts will require a decision by the Executive, as it is a controversial decision. Poots held a meeting with Maroš Šefčovič the previous week, where he said he explained “how preposterous it was” that there are 325 documentary checks a day in NI, while Rotterdam, which is the largest port in Europe, has 125.

Poots was asked about the advantages of dual market access to the EU and UK. He said, “I have described the protocol as something that gives us a win, in that we get that export trade. However, in exchange for that single goal scored, we concede about six goals on our imports.” Last week it was announced that the Northern Ireland company Dale Farm secured a contract to supply ingredients to Arla, a major European dairy company based in Denmark. The deal has in part been attributed to the Protocol. On this matter, Poots said, “If Dale Farm has achieved something on the back of the protocol, I congratulate it, and I commiserate with the many thousands of businesses that are damaged as a consequence of the protocol.”

Poots said the UK-Australia trade deal is “probably not beneficial to Northern Ireland food producers” and noted that he had “urged caution on the Australian trade deal”, given the potential negative impact on rural communities.

EU Ambassador speaks to Lords Committee

João Vale de Almeida, the EU’s Ambassador to the UK, gave evidence to the Lords European Affairs Committee on 24 June. When asked about ‘leakage’ from the Protocol, Vale de Almeida said it does have an impact on the overall relationship which is why they are so focused and trying to address the problems and raise levels of trust. He said you can “count on us to exercise the maximise degree of pragmatism”, but noted legal and economic constraints relating to the protection of the single market.

The Ambassador rejects suggestions that the EU is unaware of the sensitivities and volatilities in Northern Ireland and said they have shown a great deal of flexibility. He said flexibilities should begin with those agreed in December by Michael Gove and Maroš Šefčovič which have not yet been fully implemented. Vale de Almeida said they are determined to keep lines of communication open with NI, and to talk to everyone. Asked about the EU’s message to the unionist community, he said, “we respect the territorial integrity of the United Kingdom, we respect the respective identities of different communities…we want sincerely to find the best solutions for the problems created by Brexit in Northern Ireland and to promote a vision of positive and forward-looking future for Northern Ireland in these circumstances”.

Frost at the Foreign Affairs Committee

Lord Frost appeared before the Foreign Affairs Committee on Tuesday. The UK’s Brexit Minister said they assumed they would get deals in 2020 such as an equivalence mechanism on agrifood, and co-operation among regulators. He says, “So it turned out that we were operating in rather a different framework by the end of 2020 than the one we probably had in mind in 2019.”

He was reminded by a Committee member that the Foreign Secretary Dominic Raab said of the Protocol at the time of its signing, that it was a “cracking deal”. To this, Frost said that he thinks “it was a deal that could have been cracking, as it were, when that statement was made….we do not feel that the balance that we hoped for is quite there in real life, but there is time to do something about that.”

Lord Frost gave some further insight into his thinking on Brexit in conversation with the UK in a Changing Europe on Thursday. On his predecessors in Government, Frost said the biggest problem was “a sort of set of intellectual errors” around the Northern Ireland issue and the nature of the border. He said, “that seems to have led to the conclusion that alignment was the only way of solving these problems and hence took you in a direction that ended up with being part of the customs union, the single market, and the backstop and all of that”.

Secretary of State on the state of the protocol

Secretary of State for Northern Ireland Brandon Lewis was at the Northern Ireland Affairs Committee on Wednesday 23 June. He outlined his current position on the Protocol and didn’t reveal any detail about changes to it, as referred to by outgoing DUP leader Edwin Poots. Lewis said their current position is that “The Prime Minister has been very clear that we take nothing off the table…For us, it is a pretty straightforward situation that we want to get that rectified and we are determined to do so...The current status quo is not sustainable.”

Brandon Lewis addressing the NI Affairs Committee | Source: UK Parliament

Ian Paisley (DUP) asked the Secretary of State about the constitutional position of Northern Ireland, which some unionists view as being undermined by the Protocol. Lewis said that the central proposition of the Government’s case (in the legal challenge) is that protocol is consistent with the Act of Union. He said, “the constitutional position of Northern Ireland can only change at the behest of the people of Northern Ireland.”

Claire Hanna (SDLP) asked if the five NI Executive parties came to Lord Frost and asked for an SPS agreement, whether this would be viewed favourably. Lewis said he was sure this would be viewed as a positive thing but noted that the First Minister and deputy First Minister have been a part of discussions and have not had a joint position on solutions. He reiterated their objection to dynamic alignment. Stephen Farry (Alliance) asked about ‘mixed messaging’ coming from the UK Government on the protocol. Lewis said, “In the context of where we are, it is logical and correct to say that the protocol is not sustainable in the way that the EU is currently envisaging it being delivered. It is not sustainable because people are not accepting of it.”

On the UK’s trade deals post-Brexit, Lewis said he didn’t think farmers in NI would be detrimentally affected by the Australia-UK trade deal. He added that they work with the Department for International Trade (DIT) to ensure NI’s voice is heard the right times, noting that DIT is looking to open a hub in Northern Ireland.

Other news

• The British-Irish Intergovernmental Conference (BIIGC) met at Dublin Castle on Thursday (24th June) for the first time since 2019. The UK and Ireland released a joint communiqué following the meeting, covering East-West matters, economic cooperation, security cooperation, rights and citizenship matters, legacy, political stability, and Covid-19 recovery. The conference is set to meet again in early November. Speaking after the meeting, Simon Coveney said on Brexit, "If looking for 'radical change' means that you're not committed to the protocol, then that's a problem”. He said he hoped to see progress on sensitive issues in the coming weeks and months.
• The Northern Ireland Affairs Committee has published a response to its Chair from the new NI Minister for Economy Paul Frew in relation to monitoring and application of the Protocol. Frew states that there is an “absence of a clear and defined approach from the UK Government centrally, there has been something of a patchwork approach” in relation to forthcoming legislation under the protocol. He writes that “Without greater clarity, requirements around complex legislation –often with both devolved and reserved elements –will however continue to be discharged at risk of duplication, requirements being missed or matters being progressed without consistency or coherence.” Frew calls for “agreed and clearly articulated roles and responsibilities” in relation to the managing requirements under the Protocol and TCA.
• The UK and EU have published the Withdrawal Agreement Joint Committee Annual Report for 2020. The report outlines the activity (meetings and decisions) of the Joint Committee in 2020. The report notes that the Joint Consultative Working Group did not meet in 2020 but has since adopted its Rules of Procedure and started work.
• A delegation of the Lords Sub-Committee on the Protocol on Ireland/Northern Ireland gave evidence to the Oireachtas Joint Committee on European Affairs on Wednesday. Lord Hain told TDs about evidence given to their Committee about the great benefit if Stormont MLAs had direct relationships with MEPs, and also Oireachtas members, and if the NI Executive had direct relationships with Brussels, given they have no direct representation through elected politicians. European Commission office in Belfast (Hain)
• A judgement in the judicial review challenge to the Protocol is expected at 10 am on Wednesday.
• The European Commission has adopted two adequacy decisions for the UK to allow personal data to flow freely from the EU to the UK “where it benefits from an essentially equivalent level of protection to that guaranteed under EU law”. The decisions include a ‘sunset clause’ which means they will expire automatically four years after their entry into force.

This Week at the Assembly

• Monday 28 June, 12.30pm - Committee for The Executive Office - European Affairs - Evidence session with Maroš Šefčovič, European Commission Vice-President
• Monday 28 June, 2pm – Plenary - Question Time – The Executive Office; Economy
• Wednesday 30 June, 2pm - Committee for The Executive Office - UK Exit from European Union - Oral Briefing from Junior Ministers
• Wednesday 30 June, 2.05pm - Committee for Finance - Oral Evidence - Expert Advice on the NI Protocol: Generalists, and Article 5 - Customs and the movement of goods
• Thursday 1 July, 10am – Committee for Agriculture, Environment and Rural Affairs - Written briefings from DAERA on EU Exit legislation; Written Briefing DAERA - EU Transition Update

Catch up with the Committees

• Monday 21 June, 2pm – Plenary - Question Time – Agriculture, Environment and Rural Affairs
• Wednesday 23 June, 11am - Committee for The Economy - EU Exit legislation
• Wednesday 23 June, 3.15pm - Committee for Finance - Oral Evidence - Expert Advice on the NI Protocol: Generalists
• Thursday 24 June, 11.40am – Committee for Health - EU Exit legislation
• Thursday 24 June, 12.20pm – Committee for Agriculture, Environment and Rural Affairs - Written briefings from DAERA on EU Exit legislation