Brexit & Beyond newsletter

2 October 2023

Welcome to the 2 October 2023 Brexit & Beyond newsletter

The red and green lane system of the Windsor Framework entered into force yesterday. Meetings of the Joint Committee and the Specialised Committee on the Windsor Framework took place recently, where the EU and UK reviewed progress and finalised certain arrangements for the Framework’s implementation. Today’s newsletter also includes updates on recent debates in the Commons and Lords on Retained EU Law, and on legislation to implement the Windsor Framework.

• Windsor Framework: red and green lane system comes into force
• Meeting of the EU-UK Joint Committee
• Retained EU Law: preservation and revocation
• Scrutiny of legislation to implement the Windsor Framework
• Other news

Windsor Framework: red and green lane system comes into force

The red and green lane system, agreed in the Windsor Framework in March, entered into force yesterday (Sunday 1 October). Goods which are considered at risk of 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.

The Northern Ireland Retail Movement Scheme (NIRMS) is the green lane for retail agri-food. There are now simplified rules and procedures for pre-packaged retail goods being moved from GB to NI. UK, not EU, public health and consumer protection standards apply to food and drink from GB, which is being sold to consumers in NI. Where required, EU standards on animal and plant health still apply. Identity checks are reduced to 10% of all consignments of retail goods - these will further reduce to 8% in October 2024 and to 5% in July 2025.

The UK Internal Market Scheme expands the range of goods considered ‘not at risk’ of moving into the EU single market, and therefore increases the range of businesses which won’t have to pay EU customs duties when moving goods GB-NI. From September 2024, reduced customs paperwork will apply to these goods and the ‘full’ green lane will be in effect. New arrangements for parcels will also come into operation.

The red and green lane system established in the Windsor Framework

Certain safeguards are in place so the EU can protect its single market. The Government was required to have enhanced SPS inspection facilities in place in Northern Ireland by the start of October. The first phase of new labelling requirements has also commenced: all meat and some dairy products moving GB to NI must now be labelled “not for EU” and posters placed in the supermarkets to indicate that certain goods are only intended to be sold to consumers in NI. Later these requirements will also be extended to products in GB (this was not a requirement from the EU, but a proposal from the UK Government to ensure consistency across the UK). The BBC reports on the first posters appearing in NI supermarkets. There is a 30-day transition period for the labelling requirements (goods that are already on the market will not need to be relabelled) and the Government has stated it will provide financial support to help businesses with the new requirements.

There is also a new scheme for moving plants – the Northern Ireland plant health label (NIPHL) scheme. Traders can move plants and seeds for planting, seed potatoes, and agricultural and forestry machinery and vehicles from GB-NI, if certain requirements are met, including having a valid NIPHL. Previously there was a ban on seed potatoes and certain plants from moving GB-NI.

Views on the new arrangements

The Secretary of State for Northern Ireland has told the BBC the red/green lane system will work "unbelievably well" for moving goods from GB to NI. He said, "When people look practically at what is happening, they will see we have got as close to a frictionless border as we can." Heaton-Harris said 1,600 new businesses have registered to use the green lane and told the Conservative Party conference yesterday that the Windsor Framework is a “major improvement on the Protocol”.

The Financial Times reports on views from businesses about the new arrangements, noting, “Many suppliers and manufacturers are expected to opt for the red lane eventually, despite the more onerous paperwork required, in order to keep open the option of selling into the EU in future.”

Support for business

The Government has announced the Trader Support Service - which helps businesses to navigate the new arrangements for moving goods from GB-NI - will be extended until December 2024. It is free for businesses to use. In February, the Secretary of State for Northern Ireland told the Commons that the Government has spent £340 million helping traders through the TSS. The total number of all supplementary customs declarations closed by the Trader Support Service between February 2021 and February 2023 was 2.48 million.

The Centre for Inclusive Trade Policy has published a briefing paper on the Windsor Framework, which includes explanations of the red and green lane system.

Meeting of the EU-UK Joint Committee

The EU-UK Joint Committee met on 28 September. For the first time, it was chaired by the ‘alternate co-chairs’, UK Minister for Europe, Leo Docherty and the Deputy Secretary-General of the European Commission, John Watson. According to a joint statement, the Committee “took stock of discussions under the Withdrawal Agreement framework since the last meeting on 3 July 2023. The alternate co-chairs welcomed the progress made and reiterated their mutual commitment to continued work to ensure the full implementation of all the elements of the Windsor Framework in a faithful way.”

As set out in the Joint Committee Decision on the Windsor Framework arrangements in March 2023, the EU made a declaration stating that it is satisfied with the UK’s obligations in relation to implementing the green lane. This includes data sharing on GB-NI trade. The UK made a declaration that that all importers wishing to operate under the green lane have been granted authorisations as per the Windsor Framework.

The Joint Committee also adopted a decision to add two newly adopted EU acts to the Windsor Framework. These relate to EU trade concessions to Ukraine and Moldova. If the NI institutions were functioning, this addition would have been subject to an ‘applicability motion’ in the Assembly, as set out in the Windsor Framework (Democratic Scrutiny) Regulations 2023.

Previously, the Specialised Committee met on 20 September and took stock of the work undertaken by the EU and UK on the implementation of the Windsor Framework.

Retained EU Law: preservation and revocation

On 18 September, the Commons Delegated Legislation Committee debated the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023. The regulations preserve seven pieces of retained EU law and a revoke further 93 pieces of “obsolete and inoperable” retained EU law.

Kemi Badenoch, Secretary of State for Business and Trade, who is the minister responsible for the Retained EU Law Act | Source: UK Parliament

The Retained EU Law Bill, as introduced, contained a “sunset” clause, whereby the majority of retained EU law would expire on 31 December 2023, unless preserved. In May, Minister Kemi Badenoch announced a “new approach” for REUL and amendments to the Bill: the sunset date was replaced with a list of approximately 600 laws to be revoked at the end of this year.

Three pieces of legislation on this list have been identified by the Northern Ireland Civil Service to be preserved. Their revocation would represent a policy change, which cannot be agreed in the absence of an Executive. Shadow Minister Justin Madders questioned why the Northern Ireland regulations had been included on the list in the first place.

The Lords Secondary Legislation Scrutiny Committee has reported on the regulations, concluding, “We have no reason to doubt the Department’s assertion that these are simply loose ends being tied off to clean up the statute book.” It notes the Government’s “explainer” document, which sets out the reasons for revoking the 93 provisions, but says it is pity that the explanatory memorandum did not include these explanations and that in the interests of transparency the document should be published alongside the instrument.

The deadline for making changes to the list of Retained EU law for repeal is 31 October.

Scrutiny of legislation to implement the Windsor Framework

The House of Lords debated the Windsor Framework (Enforcement etc.) Regulations 2023 on 19 September. The Lords Secondary Legislation Scrutiny Committee found that the new measures to deliver the green lane arrangements for trade between NI and GB are “politically significant”. It concluded, “There remain questions about the timing of the legislation, with a key element of the new schemes having come into force during the parliamentary recess, a lack of permanent SPS infrastructure in NI, the absence of public consultation and a lack of information on the impact of the new arrangements.” 

Lord Dodds highlighted that, up to then, the Government had not sought a debate on some of the most important regulations, including on the Retail Movement Scheme, saying, “That is deeply regrettable”. Lord Dodds went on to say, “It is right that we hold the Government to account over not only the substance of what they are doing but the way in which they are doing it.” He presented the concerns of the DUP, concluding, “The Windsor Framework does not live up to the hype that the Prime Minister gave it when he launched earlier this year.”

Lord Benyon, Minister in the Department for Environment Food and Rural Affairs, stated, “Due to the timescales for the introduction of this statutory instrument…and the urgency of ensuring effective enforcement provisions are in place, it has not been possible to consult on this document.” Lord Benyon told peers, “There are no significant costs to businesses, no significant impact on charities or voluntary bodies and no significant impact on the public sector…it was not possible to lay these regulations earlier. The Windsor Framework was agreed on 27 February. Since then, detailed policy development and further engagement with the EU and with devolved Administrations has been required to finalise the arrangements.”

Other news

• Nine MLAs visited Brussels last week for a roundtable discussion hosted by Fianna Fáil MEP Barry Andrews for the Renew Europe party. This was the third such roundtable. They met with officials from the European Commission, Irish, and UK Governments, and the NI Office in Brussels.
• The House of Lords Sub-Committee on the Protocol continues its work in scrutinising EU legislation, which may apply to Northern Ireland under the terms of the Windsor Framework, and has published its latest correspondence with Government Ministers.
• The UK in a Changing Europe has published a report on the Review of the EU-UK Trade and Cooperation Agreement (TCA), which will take place in 2025 or 2026. It proposes three models which the review could follow. It states, “there is at present little desire on the part of either [the UK or EU] to expand the terms of the TCA. As things stand, the most likely outcome is that the TCA review is a short, technical exercise reporting on its implementation.”
• The Lords Sub-Committee on the Protocol has published correspondence from the Minister of State for Immigration regarding the UK’s Electronic Travel Authorisation Scheme.
• The UK in a Changing Europe has published its 2023 Q3 trade tracker. It includes a summary of the India-UK free trade agreement currently being negotiated. It states that a main point of contention is rules of origin: “The UK is seeking more liberal rules of origin on whiskey from Northern Ireland due to the whiskey being produced in both the Republic of Ireland and Northern Ireland.”
• The Northern Ireland Human Rights Commission has published a paper on Brexit, Health and its potential impact on Article 2 of the Windsor Framework and is launching a report on ‘Frontier Workers and their Families: Rights after Brexit’ on Wednesday 4 October.
• The Irish Government has published guidance for traders who export to GB, following the UK Government’s announcement of its import controls on EU goods in its Border Target Operating Model, which will apply from January 2024.
• The Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee has published its first EU Law Tracker Report. The Scottish Government committed to align with EU law where appropriate after Brexit. The report finds that “Overall there has not been significant divergence between Scots Law and EU Law in areas that are in the scope of the alignment commitment…[but] In view of EU legislative proposals and upcoming initiatives, across a range of policy areas there is potential for divergence by default if Scotland does not (continue to) actively pursue the same policy objectives as the EU in areas within its devolved competence and therefore potentially in scope of the alignment commitment.”
• The European Court of Justice has fined the UK €32 million for having failed to prohibit the use of marked fuel in private pleasure boats within the prescribed time limit.
• On 20 September, the House of Lords debated a report from the European Affairs Committee on the UK-EU relationship.
• The Trade and Cooperation Agreement Specialised Committee on Fisheries met on 22 September.
• The Separation Agreement Joint Committee between the UK and EEA EFTA states met on 27 September. The agreement protects the rights of EEA and EFTA nationals who were living in the UK before Brexit, and vice versa.