Brexit & Beyond newsletter

16 May 2023

Welcome to the 16 May 2023 Brexit & Beyond newsletter

The UK Government is amending a key part of its Retained EU Law Bill. The Lords Sub-Committee continues its inquiry into the Windsor Framework. This week’s newsletter also covers further scrutiny and implementation of the Windsor Framework, the UK’s Electronic Travel Authorisation Scheme and Scotland’s commitment to ‘keep pace’ with EU law.

UK Government drops ‘sunset’ clause for Retained EU Law

On 10 May, Secretary of State for Business and Trade Kemi Badenoch announced the Government is making an amendment to the Retained EU Law (REUL) Bill for a “new approach”: the sunset date (when REUL would expire unless preserved) of the end of this year will be replaced by a list of laws the Government intends to revoke at the end of 2023. Badenoch stated, “with the growing volume of REUL being identified, and the risks of legal uncertainty posed by sunsetting instruments made under EU law, it has become clear that the programme was becoming more about reducing legal risk by preserving EU laws than prioritising meaningful reform.” The Bill will still end the supremacy and special status of Retained EU Law at the end of 2023.

The Government has also updated the REUL dashboard, which catalogues Retained EU Law by department and status. There is currently a total of 4,917 laws, up from 2,417, which were identified earlier.

UK Government’s assessment of Retained EU Law by department | Source: UK Government

Badenoch also announced changes to employment law and “smarter regulation”. Reporting requirements under the Working Time Regulations will be reduced, and non-compete clauses limited to three months. She said improvements to the Better Regulation Framework are to ensure the Government “only uses regulation where necessary, and where regulation is used the impacts on wider government priorities including competition and innovation are understood.”

An urgent question on the announcement was heard in the Commons on Thursday. Minister Badenoch emphasised that it is a “technical change” and was “in response to concerns raised in this House, and it will provide the legal clarity and certainty that has been called for.” Badenoch was asked whether the “concessions” are in relation to upholding commitments in the Windsor Framework (for example, see here). Badenoch stated, “I was not involved in negotiations on the Windsor Framework, and I have said repeatedly that this is my plan. It is not the Prime Minister’s plan, and it is not the civil servants’ plan—it is my plan. This is me going into the detail and deciding that this is the best way to deliver it.”

The Commons European Scrutiny Committee has written to the Prime Minister, complaining that Minister Badenoch has not appeared before the committee to give evidence, having been asked five times. The Chair, Sir William Cash, writes, “This approach to scrutiny is deeply concerning and a worrying parallel can be drawn with how the Government handled the Windsor Framework: a major policy announcement accompanied by artificially set deadlines with no meaningful opportunity for input by Members.” He also raises concerns about the removal of the ‘sunset’ clause and suggests the list of laws to be revoked at the end of the year “relates to matters that are trivial, obsolete and are not legally and/or politically important.”

The Lords Sub-Committee on the Protocol has written to Minister Badenoch expressing “deep regret” that the Minister hasn’t responded to its questions about the interaction of the REUL Bill and the Protocol. The Chair, Lord Jay, writes, “a failure to respond before the commencement of Report Stage would significantly constrain the House’s ability to scrutinise the implications of the Bill for Northern Ireland.” Report stage is taking place this week.

Jill Rutter of the Institute for Government writes that Badenoch’s decision “was a consequence of facing up to the administrative consequences of ludicrous deadlines set in the heat of a political battle”. She notes there is still much in the Bill which the House of Lords could try and improve.

Windsor Framework inquiry

On Wednesday, the Lords Sub-Committee on the Protocol held an evidence session with business and retail representatives. Declan Gormley, Managing Director of Brookvent Ltd, said from the perspective of his business, it’s “very advantageous” to have the unique access offered by the Protocol/Windsor Framework. He said his business has continued “pretty much uninterrupted trading” with Europe and UK, “something our competitors which are solely headquartered in the UK have not been able to enjoy”. He added that they haven’t seen sufficient detail on the Windsor Framework, but it seems to address a significant amount of issues. Andrew Opie, Director of Food and Sustainability at the British Retail Consortium (BRC) also welcomed the Framework at a headline-level. He explained that the current easements for the movement of agri-food from GB to NI through the STAMNI process is “very simple” and it’s therefore natural that retailers will measure the Windsor Framework against the (easier) STAMNI arrangements rather than the Protocol.

Glyn Roberts, Chief Executive of Retail NI, also generally welcomed the Framework. He emphasised the importance of engagement with business, suggesting there could be a role for junior ministers in the Executive Office in resolving outstanding issues relating to the Windsor Framework. He said that the European Commission could open a consulate in Belfast to facilitate engagement with local representatives.

Gormley expressed some reservations about potential investment in Northern Ireland, if the Stormont Brake may be used in the future, and said there is a lack of clarity on how this will be managed.

Declan Gormley, Andrew Opie, and Glyn Roberts giving evidence to the Lords Sub-Committee | Source: UK Parliament

Movement of goods

Gormley suggested that for mixed loads, the vast majority will use the red lane as it would seem the most practical solution to avoid issues. Opie said the green lane is “crucial” for supermarkets and NI consumers but said there are outstanding SPS issues regarding the sealing of lorries. Opie suggested that the UK’s target Border Operating Model is “more sophisticated” than the EU’s model and suggested, “Maybe we could move to a process that uses the strengths that already exist in very well-run, traceable supply chains rather than needing seals and the various labelling that is required.”

Labelling

Opie highlighted a lack of clarity around labelling and customs controls and said there is no certainty that they will be able to comply with the new requirements by the 1 October deadline. He said guidance on labelling is set to be published on 19 or 20 May, after the local elections in NI. Roberts said that for small retailers, the labelling requirements would be particularly burdensome, questioning if this will add to administrative work for retailers, and potentially confuse consumers. Roberts also stated that on this key issue, “at a Northern Ireland level, we have not been involved in any discussions or a chat, and I think that that is seriously remiss.”

Gormley said the Windsor Framework is a “gift” to NI business, and a unique opportunity if properly implemented. He agrees with the Prime Minister who said it could make NI the world’s “most exciting economic zone”. Opie said the dual regulatory approach is welcome, and means choice is maintained, whether goods are produced to EU or UK standards.

On the new arrangements for parcels, Gormley said there are a limited number of logistic providers who will be able to manage this, suggesting it may work for one sector but not the other. Opie said the Framework has a “really positive approach [regarding parcels]…and is good news for consumers”. He suggested traders and SMEs who may have been wary of trading with NI online will see this as an opportunity, calling it “one of the bright spots” in the Framework.

Asked about whether this will be an ongoing negotiation, Roberts emphasised the importance of the restoration of Stormont and having a committee which is looking at these issues. He said political stability is so important for business and that the points in Windsor Framework won’t amount to much, unless there are local ministers in place.

The Committee is currently holding the final evidence session of its inquiry with the Foreign Secretary James Cleverly. It has published further written evidence submitted to the inquiry.

Scrutiny and implementation of the Windsor Framework

The Commons European Scrutiny Committee has repeated its request to the Government for a list of EU law which continues to apply in Northern Ireland under the Windsor Framework. The Chair writes, “We are struggling to understand the Government’s reluctance to provide this list, especially given that its existence and illustrative value - that it shows the amount of EU law applicable in Northern Ireland will be reduced by 97% - was used by the Government as an example of why Members should support the Windsor Framework.”

On 9 May, the European Parliament voted on legislation to implement aspects of the Windsor Framework. This covers simplified procedures for food, seed potatoes and plants for planting and agricultural machinery entering NI from GB; regulations on human medicines (which mean that all medicines will now be available at the same time and under the same conditions in NI as the rest of the UK); and regulations on tariff rate quotas on steel. The legislation was passed with large majorities and very few MEPs objected. Now the legal texts have to be adopted by the EU Council; they will then be published in the EU Official Journal and enter into force three days later.

On 10 May, the Secretary of State for Northern Ireland took questions in the Commons. Sir Jeffrey Donaldson (DUP) said a "continuing concern” of the Unionist community is “the ongoing application of EU law for all manufactured goods in Northern Ireland and that, over time, the divergence from UK law will inhibit our ability to trade with the rest of the United Kingdom.” Heaton-Harris said there are things the Government can do which can “exemplify and amplify how we can solve the problem behind his question.”

Minister in the NI Office Steve Baker said the Government would provide detailed guidance over the summer about how the green lane will operate.

UK’s Electronic Travel Authorisation Scheme

On 11 May, the Lords Secondary Legislation Scrutiny Committee took evidence on the Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations, which will implement this aspect of the UK’s new immigration regime. Overseas visitors to the UK, who do not currently need a visa, will be required to obtain pre-authorisation in the form of an Electronic Travel Authorisation (ETA). This does not apply to citizens of Ireland or the UK. Baroness Ritchie highlighted concerns about the scheme’s impact on tourism and those living near the border on the island of Ireland.

Lord Murray, Minister in the Home Office, stated, “The UK will not operate routine immigration controls on journeys from within the common travel area, with no immigration controls whatsoever on the Ireland-Northern Ireland land border.” However, he explained, “individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to enter in line with the UK’s immigration framework, including the requirement to obtain an ETA when it is introduced.”

He said an exemption for tourism “would undermine the rationale for introducing the ETA scheme and the opportunity the scheme provides to further secure the common travel area”. He suggested that the process “will be incredibly simple, straightforward and inexpensive”, saying he hopes the impact can be effectively mitigated. The Northern Ireland Tourism Alliance (NITA) has criticised the scheme and estimates that around 70% of visits to NI arrive via the Republic of Ireland and that the plan risks 25% of all tourism spend in Northern Ireland. In a change to the initial plan, people who are legally resident in Ireland, and who do not need a visa, will not need an ETA when entering the UK from Ireland.

Scotland ‘keeping pace’ with EU law

On Europe Day, 9 May, the Scottish Cabinet Secretary for Constitution, External Affairs and Culture Angus Robertson made a statement on the Scottish Government’s commitment to remain aligned with EU law.  He acknowledged the concerns of the Constitution, Europe, External Affairs and Culture Committee and has written to the Convener to commit to provide more information on the policy. Robertson outlined the Scottish Government’s reasons for pursuing the policy and stated, “The EU’s priorities map across our ambitions and plans.” He said the immediate focus would be primarily on “preventing important standards and protections from being undermined by the loss of retained EU law provisions”. He noted, “The difficult reality is that Scotland, while it is part of a UK that is not part of the EU, cannot ensure alignment with the EU in all cases.”

Conservative MSP Donald Cameron said the Scottish Government had used the formal keeping-pace power only once since 2021. He argued, “That is a perfect example of the Scottish National Party virtue signalling over proper policy making.” Robertson pointed out that there are a number of different ways of aligning with EU law, adding, “It is important that our committees should be able to best understand why we should use or not use a certain piece of legislation—why we should approach the matter in different ways.”

The Minister was pressed about a youth mobility scheme to replace Erasmus, which the Welsh Government has introduced. Robertson pointed to challenges in UK law regarding the movement of people saying, “The issue is not simply about having a scheme or finding resources; it is also about whether it is workable, given the circumstances of Brexit.”

Other news

• The Lords Sub-Committee on the Protocol has written to the Government about its Illegal Migration Bill. The Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) are concerned that the Bill may breach the UK Government’s commitments in Article 2. In Article 2, 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.
• The BBC reports on disagreement between the Scottish and UK Governments about funding for the new Border Control Post at Cairnryan. John Campbell notes the post is “politically sensitive because any controls on goods which originate from the Republic of Ireland must not interfere with the free flow of goods from Northern Ireland.”
• Senedd Research has published an article on Wales and the Windsor Framework.
• Northern Ireland Legal Quarterly has published a new article ‘From the Protocol to the Windsor Framework’, examining the possible implications for Northern Ireland of the Windsor Framework.
• The Commons Library has published a research briefing on UK-EU trade statistics. In 2022, 64% of Northern Ireland’s goods exports were to the EU, and 68% of NI’s goods imports were from the EU – this is the highest proportion of any country or region in the UK.
• The 64^th plenary of the British-Irish Parliamentary Assembly is meeting on 15-16 May in St Helier, Jersey.
• On 10 May, the Senedd Culture, Communications, Welsh Language, Sport, and International Relations Committee held an evidence session with the First Minister on Wales-Ireland relations.
• The UK and Switzerland have announced they have started negotiations for an enhanced Free Trade Agreement (FTA).
• The EU and UK have published a joint statement following a meeting of the Specialised Committee on Financial Provisions.