Brexit & Beyond Newsletter

13 December 2021

Welcome to the 13 December 2021 Brexit & Beyond newsletter

The EU says it is ready to change its legislation on medicines, while the UK says this issue cannot be resolved in isolation – talks continue. At the Assembly, the Committee for the Executive Office discussed civic society engagement in relation to Brexit. The UK Parliament has agreed to establish the EU-UK Parliamentary Partnership Assembly. The Seanad Special Select Committee on Brexit has published its final report. UK parliamentary committees heard evidence on the Protocol, trade flows, Article 16, Common Frameworks, the Common Travel Area and immigration.

EU-UK negotiations

UK Brexit Minister Lord Frost and European Commission Vice-President Maroš Šefčovič met again on Friday 10 December after another week of talks on the Protocol on Ireland/Northern Ireland. Following the meeting, Lord Frost said they would not find a “durable solution” which does not deal with all the problems – customs, agrifood rules, subsidy policy, VAT, and governance. Šefčovič said it is “crunch time” for medicines and that the EU is ready to amend its legislation. The negotiators will meet this week on both Wednesday and Friday.

Medicines

Lord Frost was asked about medicines supply in relation to the Protocol on Thursday 9 December. He was asked if he is taking a “nothing is agreed until everything is agreed” approach and whether medicines supply should be dealt with as a priority, if necessary separately from other Protocol issues. Lord Frost responded: “[medicines] are a special case, if you like, of the issue of supply of goods more generally to Northern Ireland, so the matter cannot be seen entirely in isolation but needs to be solved as part of many of the other difficulties on the protocol.” Lord Frost stated that a solution on veterinary medicines is less advanced but this is part of the discussions. The UK Brexit Minister also stated that they hadn’t had “full access to all the detail, all the potential legislation and all the potential guidance” from the EU and until then, “it is obviously not possible for us to reach agreement”. Lord Frost will be taking questions from peers this Thursday.

Parliamentary Partnership Assembly

On 6 December, the UK Parliament agreed to establish the UK delegation to the EU-UK Parliamentary Partnership Assembly (PPA). Under the Trade and Cooperation Agreement, the PPA can make recommendations to the Partnership Council which oversees the agreement. The UK delegation will consist of 21 MPs and 14 Lords, and the European Parliament delegation will consist of 35 MEPs. In the Commons debate, MPs from Northern Ireland and Scotland called for the devolved administrations to be included in the PPA delegation. Sir Oliver Heald said, “Lord Kinnoull and I have already had discussions with the devolved legislatures to ensure that they are kept up to speed, ahead of the bureau that will be deciding the agendas, and that they can have input into the process so that their views are known…I would like the three legislatures to have observer status so that they could be at our meetings and have informal discussions…but that is something that would need to be agreed with the European Parliament.” On 9 December, the first meeting of the EU’s PPA delegation took place; the delegation’s chair and vice-chairs were elected.

 Governance structure of the EU-UK Trade and Cooperation Agreement

Brexit at the Assembly

Civic society engagement

On Wednesday 8 December, the Committee for The Executive Office heard evidence from the Centre for Cross Border Studies (CCBS). CCBS’ Megan McDermott said there is currently not an adequate system for structured engagement by civic society with representatives of regional, national or EU bodies. However, this doesn’t reflect a lack of willingness to engage and predates Brexit. The CCBS proposes practical measures in addition to those put forward by the EU for better engagement, including: contact points for civil society organisations in the Joint and Specialised Committees; a schedule of meetings between civic society and the Joint and Specialised Committees; consideration of meetings with the Joint Consultative Working Group; and publication of agendas and records of issues discussed after such meetings.

 Dr Anthony Soares and Megan McDermott from the Centre for Cross Border Studies | Source: NI Assembly

Regarding proposals put forward by the EU and UK, CCBS Director Dr Anthony Soares said there should be a forum which specifically monitors North-South cooperation, and this cannot take place without engagement from both jurisdictions. He added that given there is a lack of protection for East-West cooperation in the Protocol, the UK Government should strengthen East-West civic society cooperation, potentially via the Trade and Cooperation Agreement. The CCBS has also submitted written evidence to the Committee.

Written questions

In other news from the Assembly, the Minister for Infrastructure has responded to a question on legal requirements for stickers on NI registered vehicles when driving in the European Union. The Minister explains the international obligations for driving abroad and states: “the guidance is that all vehicles registered in this jurisdiction should display the letters ‘UK’ when driven abroad.”

The Minister for the Economy has responded to a question on Invest NI’s promotion of inward investment in relation to the Protocol. He says, “I, nor my Department, dictates how Invest NI promotes Northern Ireland to investors.”

Seanad Committee report on Brexit

The Seanad Special Select Committee on the Withdrawal of the UK from the EU has published its final report. The Committee has engaged several times with the Committee for the Executive Office and acknowledges its diverse views in the report, including unionist concerns about the Protocol on Ireland/Northern Ireland. The Committee calls for certainty and is of the view that the EU has made “significant concessions” on the Protocol. It makes a series of recommendations in a wide range of areas, including trade flows and customs, rules of origin, the Protocol, health, education, citizens’ rights, data flows, and recognition of qualifications. The Committee recommends that the Irish Government and the European Union begin preparations immediately for the 2024 democratic consent vote in Northern Ireland.

The Seanad Committee states that “a democratic deficit now exists in Northern Ireland with citizens being subject to EU Single Market and Customs rules but having no directly elected member to the European Parliament” and says the Irish Government “must make every effort to ensure the voice of citizens in Northern Ireland is properly represented at EU level.” It recommends that the Irish Government “examine the potential for ensuring Irish citizens in Northern Ireland have the right to vote in EU elections.” The Senators consider it “essential for Northern Ireland voices to be adequately heard in the dialogue around Brexit”, recommending the establishment of a dedicated structure between the Northern Ireland Assembly and the European Parliament, as suggested by the EU. The Committee also highlights a proposal for the creation of a Committee of the Northern Ireland Assembly which would consider EU directives/legislation before they were implemented and which could give advice to the Assembly on whether to consent to it.

The Committee says consideration should be given to collaborating with the UK’s Turing Scheme, a student exchange programme established by the UK to replace the UK’s participation in the EU’s Erasmus programme. In October, the UK Government announced the successful applicants to the Turing Scheme: 13 further and higher education institutions in Northern Ireland will receive funding under the scheme.

Business and academics on the Protocol (almost) one year on

The House of Commons International Trade Committee continued its inquiry into the UK-EU trading relationship on Wednesday 8 December. CEO of Manufacturing NI Stephen Kelly had plenty of praise for officials at HMRC: he said they have been “exceptional” and efforts to resolve issues were first-class. On the shifting axis of trade, he said, “business will find the way which causes the least friction”, emphasising that the Great Britain – Northern Ireland trading route is where all the friction is. Kelly said, “No one said this Protocol is working fine,” but emphasised that businesses are fundamentally pragmatic. He likened the Protocol to a new machine: it takes time to understand, make work, and make productive, and it is not unusual that we find problems.

CEO of Manufacturing NI Stephen Kelly | Source: UK Parliament

Aodhán Connolly, Director of the Northern Ireland Retail Consortium, sees one of the biggest problems as the different negotiating tactics of the EU and the UK: “UKG will come in with this list, will ask for the sun, the moon, and the stars and will be happy if they get the sky, whereas the EU says here is a principle, now we have to extrapolate this out as far as possible, and sometimes we have to change the principle”. He called for a bespoke veterinary agreement with a guillotine clause which would give the EU reassurance about its single market, and allow the UK to conclude other free trade deals. They gave further proposals for fixing the issues, including widening the ‘not at risk’ test and trusted trader scheme, and greater education for UK and EU businesses. Kelly pointed out that UK traders will experience what NI did this year, when full border controls are introduced on 1 January 2022: this may help things on the Irish Sea when GB traders understand the requirements.

The committee also heard from Professor Katy Hayward of Queen’s University Belfast, and Dr Esmond Birnie, Senior Economist at Ulster University. Hayward said there was a risk of “the political trumping the pragmatic” in the negotiations and said there is one way out - joint agreement. Birnie highlighted the costs of the TSS and other support schemes, and said it seems that both the UK and EU have moved from their initial starting positions.

Article 16

Hayward and Birnie disagreed about the use of Article 16. Birnie said he thought its use was justifiable, that in the short term it could end the Protocol checks, and that the EU would be more likely to retaliate under the TCA. Hayward was emphatic that if the ultimate aim is to provide certainty and stability for NI, Article 16 should not be triggered while talks are ongoing. She said it couldn’t offer anything better or more long-lasting than the outcome of these talks. She added that the UK would have to identify the specific problem they wanted to address and a specific measure to do so. Connolly pointed out that its impact would be felt most by GB businesses, the biggest problem being non-tariff barriers.

Secretary of State for Northern Ireland Brandon Lewis was taking questions from MPs in the Commons that day. He said, “Article 16 is not the solution in and of itself; it is the start of a process. It is right that we strain every sinew to reach an agreement with the EU.” In correspondence to the Northern Ireland Affairs Committee, the Secretary of State says that the Government will undertake an analysis of the potential impacts of any EU response to it triggering Article 16.

Common Frameworks

The Scottish Cabinet Secretary for the Constitution, External Affairs and Culture Angus Robertson gave evidence to the Lords Common Frameworks Scrutiny Committee on Tuesday 7 December.  He said the Scottish Government is clear that the Internal Market Act is an unnecessary undermining of the devolution settlement. He added that “it really does take something pretty momentous” to see all party agreement between the DUP, SDLP, Alliance, Sinn Féin, Welsh Labour, Plaid Cymru, the SNP and now the Scottish Greens. They have the same position on the operation of frameworks: “things are supposed to operate on the basis of agreement”.

He told the committee that UK, Welsh, Scottish and NI Ministers have endorsed a statement which the UK Minister will make in Parliament in the coming days. This will confirm that policy divergence agreed through Common Frameworks can be excluded from the market access principles in the Internal Market Act. Guidance on the process was published on Friday 10 December. He said this was “some mitigation” but highlighted that the final decision lies with the UK Minister alone which, he says, is “fundamentally inconsistent” with the practices of devolution. He said the Scottish Government will press ahead to ban single use plastics, and while governments elsewhere in the UK are not at that stage, that shouldn’t hinder its progress. He is keen to see how UK Ministers will approach it and whether, “as a matter of course”, they take the position of devolved governments seriously. He said the Frameworks and the Internal Market Act are “inherently contradictory”.

The committee heard that the Common Frameworks on Services, and on Mutual Recognition of Professional Qualifications are less developed. Work is ongoing to understand how they will work in the context of the Internal Market Act. Robertson said the relationships at official and ministerial level between the devolved administrations are “first-class”: they speak regularly, and with one voice, regardless of political differences.

The UK Government (UKG) has published its 13^th Common Frameworks statutory report. UKG and devolved governments have agreed to aim to complete the Common Frameworks programme in March 2022, ahead of the Assembly elections. UKG, noting “sufficient progress” on Common Frameworks, intends to repeal the restrictions on retained EU law set out in Section 12 of the EU Withdrawal Act 2018 (‘freezing’ powers), which will lapse after 31 January 2022.

The Senedd research team has published a new article on Common Frameworks, covering their interaction with the Internal Market Act, and how the Frameworks may constrain devolved competence.

Article 2

The Social Change Initiative, along with the human rights centres at Queen’s University Belfast and the University of Michigan, has published a guide on Human Rights and Equality in Northern Ireland under the Protocol. It considers several case studies, as well as possible legal remedies if one believes there is a breach of Article 2. Article 2 states that following the UK’s withdrawal from the EU, there shall be “no diminution of rights, safeguards or equality of opportunity” as set out in the Good Friday Agreement. Minister of State in the NI Office Conor Burns last week confirmed that “the provisions of Article 2 are unconnected to any triggering of Article 16. We are absolutely committed to seeing no diminution of human rights in Northern Ireland.” The Committee for the Executive Office will hear evidence on Article 2 this week.

Common Travel Area, immigration rules, and citizenship

The House of Commons Northern Ireland Affairs Committee held an oral evidence session on 8 December on UK immigration policy and the Common Travel Area with Kevin Foster MP, Parliamentary Under-Secretary of State for Immigration and Future Borders. Foster said the biggest change to the Common Travel Area post-Brexit is that the UK will no longer accept EEA national identity cards at the border; Irish passports and the Irish passport card will continue to be accepted. He outlined the new Electronic Travel Authorisation(ETA) system in the Nationality and Borders Bill, which will apply in future to all non-UK and Irish nationals and those who do not have immigration permission separately to be in the UK. On how this would be checked, Foster said this would “absolutely not” be at the Irish land border: “We also would not be checking them normally, because we do not operate routine immigration controls through the CTA. However, it would be a similar position in Northern Ireland to if someone was in the rest of the UK, and we may look to see if they have that permission to be in the UK.” The Bill was passed in the Commons on Wednesday and now proceeds to the Lords. The Irish Government has said it will express its concerns on the proposals to the UK Government.

The Committee also discussed various citizenship issues with the Minister. Chair of the Committee Simon Hoare said that the Government’s initial response to the Committee’s report on these issues “certainly had no sensitivity to or awareness of that shared, difficult, contested, problematic but nonetheless existing history [of the British Isles].” Dublin City University recently published an article on the Common Travel Area, which argues, “While the continuation of the CTA is fairly certain irrespective of what happens to the Protocol, its fragmented and legally diverse nature…means it remains a creature of political and administrative expediency.”

Other news

• Lord Frost laid a written statement on the Review of Retained EU law on 9 December. The Government has identified seven areas where EU law concepts, retained by the EU Withdrawal Act, still affect the UK after Brexit. Lord Frost stated his officials will be consulting with internal and external stakeholders “to ensure that any proposed legislative and non-legislative solutions are thoroughly tested”. He also stated that any individual or group with relevant expertise who wishes to be involved can contact the Brexit Opportunities Unit in the Cabinet Office.
• The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland held a session on 8 December with Northern Ireland port and harbour authorities on the impact of the Protocol on their operations. The session with Warrenpoint Harbour Authority and Belfast Harbour can be watched back here.

• Lord Ashcroft has published new polling on Northern Ireland, including on Brexit and the Protocol.
• UK in a Changing Europe has launched a tracker on attitudes of the British public to Brexit and has published the results of a new poll.
• The European Commission has allocated €920.4 million to Ireland from the Brexit Adjustment Reserve.
• The Commons European Scrutiny Committee has published its 13^th report. It considers EU proposals for standardised smartphone chargers, the Carbon Border Adjustment Mechanism and EU proposals for decisions of the EU-UK Joint Committee.

This Week at the Assembly

• Monday 13 December, 2pm – Plenary - Question Time - The Executive Office
• Wednesday 15 December, 10am - Committee for Infrastructure - EU Exit legislation
• Wednesday 15 December, 2pm - Committee for The Executive Office - Article 2 of the Ireland/Northern Ireland Protocol: Dedicated Mechanism - Oral Briefing from NI Human Rights Commission, NI Equality Commission and Irish Human Rights and Equality Commission
• Thursday 16 December, 10.30am - Committee for Health - Briefing from the Department for Health on Common Frameworks and Brexit issues

Catch up with Assembly Business

• Monday 6 December, 2pm – Plenary - Question Time - Economy
• Tuesday 7 December, 2pm – Plenary - Question Time – Finance; Motion - The draft Direct Payments to Farmers (Simplifications) Regulations (Northern Ireland) 2022
• Wednesday 8 December, 3.30pm - Committee for The Executive Office - Civic Engagement and the EU - Oral Briefing from the Centre for Cross Border Studies