Brexit & Beyond newsletter

23 October 2023

Welcome to the 23 October 2023 Brexit & Beyond newsletter

The Government has given a positive update on the implementation of the Windsor Framework. A motion to regret the implementing regulations was debated in the Lords. The European Commission has set out its priorities in its 2024 Work Programme. Today’s newsletter also has updates on Retained EU Law, and EU and UK divergence and alignment.

Later today, the Foreign Secretary James Cleverly will give evidence to the Lords European Affairs Committee, and on Wednesday, he will appear before the Commons European Scrutiny Committee. On Wednesday, both the Commons Northern Ireland Affairs Committee and the Lords Protocol on Ireland/Northern Ireland Sub-Committee will hear evidence from Chris Heaton-Harris, Secretary of State for Northern Ireland. The British-Irish Parliamentary Assembly is meeting in Kildare today and tomorrow. The Inter-Parliamentary Forum will meet on Friday at the Scottish Parliament.

• UK Government view on the Windsor Framework’s operation
• Lords debate the Windsor Framework
• European Commission 2024 Work Programme
• Retained EU Law
• Other news

UK Government view on the Windsor Framework’s operation

In a letter to the Chair of the Lords Sub-Committee on the Protocol, Baroness Neville-Rolfe, Minister of State in the Cabinet Office writes that the Government is “committed to seeing [the Windsor Framework] given effect in a way that protects Northern Ireland’s place in the Union and ensures the smooth flow of trade between Great Britain and Northern Ireland.” She said there will be £50 million in additional support for agri-food retailers who have to comply with new labelling requirements. There are now over 6,200 businesses registered on the UK Internal Market Scheme (the green lane for customs); 2,200 of these were not members of the previous UK Trader Scheme. The new NI Plant Health Label scheme has nearly 150 registered businesses. Neville-Rolfe says that wholesaler Booker has told its consumers they can “bring back some of your favourite products that we had to remove due to the previous Northern Ireland Protocol”. She states, “The green lane has operated smoothly to date, and we are absolutely committed to working closely with businesses to address any issues that arise.”  

Referencing the new role for the NI Assembly in the Windsor Framework, the Minister concludes, “the continued lack of a Northern Ireland Executive and Assembly means that local, democratically elected representatives are not able to have a say in these new arrangements…We are conscious that some sought to justify not forming an Executive by virtue of concerns that the October arrangements would be disruptive and unworkable. With these arrangements now in place, without those concerns materialising, there is an opportunity to move on to focusing more broadly on a plan to make Northern Ireland work.”

Meanwhile, the Lords Sub-Committee has written to the Foreign Secretary, highlighting issues in relation to the Windsor Framework which have been raised by business groups, traders and farmers. These include the supply of veterinary medicines when the grace period ends at the end of 2025, movement of livestock, ‘rest of world’ supermarket products which cannot use the green lane, labelling requirements for food supplements, issues around groupage/mixed loads, and dissatisfactory engagement with businesses. The committee notes its call for the Government to maintain a record of regulatory divergence and its impact on Northern Ireland. The committee states that “recent press reports have suggested the Government is considering plans to take powers to implement aspects of the Windsor Framework which are currently devolved to the Northern Ireland Executive” and asks if this would be compatible with the Sewel Convention. According to the Sewel Convention, when the UK Parliament is legislating on matters within the devolved competence of the administrations of Northern Ireland, Wales, and Scotland, the Government should “not normally” do so without the consent of the devolved administration.

Lords debate the Windsor Framework

The House of Lords debated a motion to regret the Windsor Framework (Plant Health) Regulations 2023 on 18 October. This was moved by Lord Dodds, who said he wanted “to ensure that Parliament has an opportunity to debate and scrutinise measures that have profound political and constitutional ramifications for the union. Otherwise, the Government would have pushed these measures through without any debate.”

The House of Lords debates the Windsor Framework | Source: UK Parliament

Baroness Suttie (Liberal Democrat spokesperson on Northern Ireland) said the Framework “marks a significant step forward [but]…it is far from perfect…these proposals continue to stem from incompatible promises that were made to the people of Northern Ireland as a result of Brexit. There is also little doubt that there is a case for further pragmatic changes to be made in future, based on the realities of how these mechanisms work in practice for the people and businesses of Northern Ireland.” Baroness Anderson (Labour) echoed the view that the Framework is not perfect but is a “substantial improvement”. She added, “the core tenets of the Windsor Framework are now in operation…supporting [this motion to regret]…would suggest that we believe that there is a viable alternative. We are unable to say that and therefore cannot support him [Lord Dodds].”

Government Minister Lord Benyon responded and defended the aims of the regulations saying they “play a critical role in facilitating the seamless movement of goods between Great Britain and Northern Ireland, reducing trade barriers, and promoting a more efficient and cost-effective trading environment.”

European Commission 2024 Work Programme

On 17 October, the European Commission adopted its Work Programme for 2024 which sets out its proposals and new initiatives for the year ahead (in this case, until the elections to the European Parliament, which are to take place in June 2024). There is a “strong focus on simplifying rules for citizens and businesses” in the EU. The Work Programme was debated in the European Parliament.

In February, when the Windsor Framework was agreed, the European Commission put forward measures to improve engagement with NI stakeholders. It said it would engage stakeholders on its Work Programme, and highlight proposals of particular interest, which may apply in Northern Ireland. It also stated that the Work Programme would be discussed in the Joint Consultative Working Group.

Genetic Technology regulations

One proposal, which the Commission says should be agreed “to foster sustainable farming and food security”, is the regulation on plants obtained by certain new genomic techniques (NGTs) and their food and feed. The European Parliament is currently considering the regulation. As the law amends an existing EU regulation in the Windsor Framework, it may be considered by the Windsor Framework Democratic Scrutiny Committee, which is to be established in the Assembly.

According to the UK Government, “England is ahead of the EU” in regulatory developments in this area. It has passed the Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations 2022 and the Precision Breeding Act. The Government’s assessment is that the EU proposal is “very similar” to that Act: “both…seek to develop a more proportionate and simpler system for NGTs/Precision breeding”, however the definitions of NGTs may differ and will have implications for the extent of divergence between England and the EU. The EU proposal covers only plants, while the UK Act covers animals and plants.

Precision bred products from England are considered a GMO under current EU legislation and entail the associated requirements before being placed on the EU market. This would also apply in NI, however under the Windsor Framework, “future [precision bred] PBO food products authorised as safe for use in food in England can move under the Northern Ireland Retail Movement Scheme for sale in Northern Ireland” i.e. they can enter Northern Ireland via the green lane.

As the regulation is within a devolved policy area, it also falls within the scope of several Common Frameworks, which enable the UK Government and devolved governments to jointly consider and manage future divergence. The Scottish and Welsh Governments have indicated that they don’t currently intend to change their GM regulatory regime.

Retained EU Law

On 17 October, the House of Lords debated the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023, which revoke a further 93 pieces of “obsolete or inoperable” retained EU law (REUL) and preserve seven items on the schedule for revocation. The deadline for making changes to the list of Retained EU law to be repealed is 31 October, and almost 600 laws will be repealed at the end of the year.

As part of changes to REUL, the UK Government has announced reforms for the wine sector, including the removal of “expensive and cumbersome” packaging requirements and more freedoms around use of hybrid grape varieties and blending wines.

The UK Government’s current assessment of Retained EU Law | Source: UK Government REUL dashboard

REUL and Article 2

The Lords Sub-Committee received a response to its queries on the REUL Act’s interaction with the Windsor Framework. The Government confirms that “any domestic law giving effect to the Withdrawal Agreement - including the Windsor Framework - will continue to be interpreted in line with that Agreement. This will ensure that where EU law is applied by the Withdrawal Agreement and the Windsor Framework, it will have the same effect as it would in the EU (including the application of general principles and the principle of supremacy).” The Minister states that Government departments are working to “compile an authoritative account of where retained EU law sits across policy areas and sectors. This includes identifying where retained EU law falls within scope of Article 2… [but it] does not hold centrally a list of measures which fall within scope of Article 2.”

Under Article 2 of the Windsor Framework/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.

The Brexit Opportunities Unit’s central coordination function is working with departments to identify the implications of the removal of interpretive effects for retained EU law and is working with the Northern Ireland Office “to understand the interaction with Article 2 and ensure the Government is meeting its international commitments.” It refers to work in the Northern Ireland Civil Service to identify interpretative effects and where legislation may be required for provisions and principles in secondary retained (or assimilated) EU law e.g. codification of directly effective rights. The Committee has again written to the Government asking about compliance with Article 2.

Other news

• The UK in a Changing Europe has published its latest divergence tracker. It finds six cases of active divergence (the UK changes its rules); nine of passive divergence (the EU changes its rules and the UK does not follow); and five of active alignment (where the UK aligns more closely with EU regulations or systems). It highlights implications for divergence between NI and GB of EU rules on pesticides, the sale of microplastics, vehicle emissions and the marketing of jam – which will potentially apply in Northern Ireland under the terms of the Windsor Framework. The report’s author Joël Reland concludes that a repeated theme is very few cases of active divergence by the UK, noting its disruptive economic impact: “Invariably, businesses prefer being able to operate to the same standards in the UK and EU, as it simplifies their operations”.
• The Human Rights Consortium has published a paper on the new arrangements in the Windsor Framework for the NI Assembly - the Stormont Brake and applicability motions.
• The Dublin City University Brexit Institute has published a series of working papers. Professor Billy Melo Araujo considers the Windsor Framework and its impact for Northern Ireland and EU-UK Relations, showing “that by seeking to address certain difficulties, the WF creates entirely new ones that undermine the central aims of the Protocol”. Niall Moran writes on goods, customs and rules of origin, stating that, “the UK is continuously facing a choice between divergence and increased cooperation with the EU.”
• The Welsh Parliament has published a summary report of the third meeting of the UK-EU Parliamentary Partnership Assembly in July. It continues to call for devolved legislatures to be able to speak in plenary debates on areas of devolved competence.
• The NI Chamber of Commerce is conducting a survey on Northern Ireland’s international trade, including the impact of the Windsor Framework and the EU-UK Trade and Cooperation Agreement.