Brexit & Beyond newsletter

5 February 2024

Welcome to the 5 February 2024 Brexit & Beyond newsletter

On Saturday 3 February, after two years, the Northern Ireland Assembly returned. Edwin Poots (DUP) has been elected Speaker. Michelle O’Neill (Sinn Féin) was appointed First Minister, and Emma Little-Pengelly (DUP) deputy First Minister. The NI Assembly’s official report details the proceedings and the BBC reports on the nomination of the Executive. Assembly committees (including the new Windsor Framework Democratic Scrutiny Committee) will be established, and committee chairs and deputy chairs will be appointed at tomorrow’s Assembly sitting.  

The UK Prime Minister Rishi Sunak and Taoiseach Leo Varadkar are in Belfast today and have been meeting political parties and the new Executive.

First Minister Michelle O’Neill (left) speaking at the first sitting of the restored Assembly.

Last week the DUP and UK Government reached a deal which paved the way for the return of NI’s political institutions. The agreement and corresponding legislation has been debated in Parliament. In other news, the UK has introduced its first stage of post-Brexit border controls. The Government has published an update on retained EU law, and expanded on its view of its Article 2 commitments in relation to immigration law.

A deal is announced

On 31 January, the UK Government laid a Command Paper, ‘Safeguarding the Union’, following an announcement by DUP leader Sir Jeffrey Donaldson that his party had endorsed the deal with the UK Government. Alongside this, two statutory instruments were published. The Secretary of State for Northern Ireland Chris Heaton-Harris announced the deal in the House of Commons on Wednesday.

The UK Government is legislating through the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 to “affirm Northern Ireland’s place in the Union.” This legislation will prohibit the Government from ratifying new agreements with the EU, which would “create new EU law alignment for Northern Ireland and result in a regulatory barrier between Great Britain and Northern Ireland.” Additionally, the legislation amends section 7A of the European Union (Withdrawal) Act 2018 to reflect the Stormont Brake. Section 7A provides the mechanism for certain EU laws to be given legal effect in the UK. 30 MLAs from at least two parties in the NI Assembly can notify the UK Government that they want to use the Stormont Brake to stop the application of amended or replacement EU law in Northern Ireland. There are restrictions on its use.

The regulations establish a “transparency obligation” so UK Ministers must make a statement on whether a new Act of Parliament would have a “significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”.

The Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 will amend the UK Internal Market Act 2020 to provide protection in law against exit procedures on goods moving from NI to GB (as envisaged in the Windsor Framework). It affirms unfettered access for NI goods moving to GB, regardless of future regulatory changes, and provides protection for NI food and feed businesses (as set out in the Border Target Operating Model). The regulations amend the Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020 to ensure that unfettered access benefits Northern Ireland traders only, not businesses which may divert goods to Northern Ireland to obtain the same benefit.

The Command Paper sets out a series of commitments:

• The Government states that the 'green lane', established by the Windsor Framework has been replaced with a new ‘UK internal market system’. It sets out a commitment, the Internal Market Guarantee, that more than 80% of all freight movements GB-NI will be treated as ‘not at risk’, and can therefore move to NI using the internal market system rather than the red lane.
• The Government will “remove checks when goods move within the UK internal market system except those conducted by UK authorities and required as part of a risk-based or intelligence-led approach to tackle criminality, abuse of the scheme, smuggling and disease risks.” It notes the provisions in the Windsor Framework for a reduction in identity checks to 5% in July 2025 on agri-food movements from GB-NI, explaining, “we will now go further…At present, vehicles carrying goods which are destined for both the EU and for NI must undergo identity checks in respect of their red lane consignments. Reflecting that these vehicles are already stopped and opened, we will put in place arrangements with the Department of Agriculture, Environment and Rural Affairs (DAERA) so that these are the focus of identity checks.”
• The number of trade movements covered by the internal market system is to be expanded. The Government is “working at pace” to agree a new legal text with the EU to expand the scope of the Northern Ireland Retail Movement Scheme to cover more unprocessed, ‘Rest of World’ products such as Thai poultry, and some cut flowers and herbs.
• A decision of the EU-UK Joint Committee (a draft of which was published on 30 January) will allow NI businesses to access agri-food goods (e.g. New Zealand lamb) imported to the UK through its post-Brexit free trade agreements. This will have to be approved by the EU Council before adoption in the Joint Committee. European Commission Vice-President Maroš Šefčovič said this is “based on a careful assessment of trade data and replies to the needs of Northern Ireland businesses, while protecting [the EU] Single Market.”
• The paper sets out that there will be no Border Control Post in Cairnryan. Goods which do not qualifying for unfettered access i.e. those from Ireland, will have to comply with formalities. UKG intends to “develop an approach to checks and formalities on those goods that does not pose any risk to the free and unfettered movement of qualifying Northern Ireland goods.”
• The paper contains commitments on managing and monitoring divergence, including a Ministerial group to oversee the implementation of the new arrangements. It restates the role for the Office of the Internal Market (OIM) in monitoring divergence impacts for NI.
• The Government says it will repeal section 10(1)(b) of the European Union (Withdrawal) Act 2018, meaning “a full and complete repeal of all statutory duties relating to the 'all-island economy'”, referring to this language in the 2017 UK-EU Joint Report.
• The Government commits to “putting the first decisions on whether or not to apply new EU rules before the Assembly within the first month following restoration of devolved institutions”.
• An East-West Council will be established in early 2024, made up of government and business representatives from the constituent parts of the UK “to discuss the opportunities and address the challenges [they] share”.
• A new body, Intertrade UK, will also be set up “to provide advice and facilitation to enable businesses and traders across the UK to expand activities and trade across the UK”.
• The Government will establish a new working group with the NI Executive to consider the operation of the Framework.
• For “independent oversight of the operational implementation” of the Windsor Framework, the Government will appoint an Independent Monitoring Panel (IMP). The IMP will support the work of an independent review of the Windsor Framework after the 2024 Democratic Consent vote.
• UKG will set out in writing an agreed operational approach with the NI Assembly for the Stormont Brake. It will give the Assembly advance notice of relevant proposed EU replacement and amending acts, as well as notification upon their adoption. It will notify the Assembly of any new EU acts, and set out the information MLAs need to provide when notifying the Government that they wish to pull the Brake.
• The Government has also published draft legislation for the ‘Not for EU’ labelling requirements on agri-food products to apply across the UK “to ensure no incentive arises for businesses to avoid placing goods on the Northern Ireland market”.

Veterinary medicines

The Command Paper sets out the Government’s view on the issue of future veterinary medicines supply to Northern Ireland. Northern Ireland will have to follow EU rules on veterinary medicines when the grace period ends at the end of 2025. The British Veterinary Association says Northern Ireland could lose access to 51% of the veterinary medicines it currently receives as the requirements under EU rules to send products from GB to NI make it likely that companies would withdraw from the market. The Lords Sub-Committee on the Windsor Framework recently heard evidence on this issue, as covered in our last newsletter.

The UK Government says it will pursue discussions with the EU to jointly resolve the matter and is “prepared to look carefully and creatively for possible solutions”. The Government adds that it will, “if necessary, deploy all available flexibilities to safeguard and sustain the supply of veterinary medicines in Northern Ireland. This work will include progressing swiftly our plans on all the issues covered in the 2023 Review of the Veterinary Medicines Regulations.” The Government’s recent report on Retained EU Law states that it plans to update the 2013 Veterinary Medicines Regulations and notes that this “will more closely align regulatory frameworks between Great Britain and Northern Ireland.”

Debates in Parliament

On Thursday, the Commons debated the secondary legislation accompanying the deal. Secretary of State for Northern Ireland Chris Heaton-Harris said the regulations on NI’s constitutional status ends “any presumption that there is any form of automatic and unchecked dynamic alignment with European goods rules”, referring to the Stormont Brake and section 7a amendment. The legislation to implement the provisions for the Stormont Brake, applicability motions, and to establish a new committee in the Assembly have been made and came into force on 2 February.

The Minister was questioned about divergence for GB from EU laws and ‘Brexit freedoms’. He stated, “This package of measures will not change the freedoms and powers we have secured through leaving the European Union or through the Windsor Framework. It will not reduce our ability to diverge.” Hilary Benn, Shadow Secretary of State for Northern Ireland, welcomed the measures. He declared that if Labour forms the next UK Government, it would seek to negotiate a sanitary and phytosanitary agreement with the EU “with the intention of removing checks on animals, food and plants, not only between GB and NI, but between the whole of the UK and the EU.”

Stephen Farry (Alliance) raised concern about the Stormont Brake, saying if there is delay or uncertainty in the application of an updated EU regulation, “that could inadvertently undermine Northern Ireland’s dual market access, by creating uncertainty for businesses seeking to invest or remain in Northern Ireland.”

Leader of the DUP, Sir Jeffrey Donaldson speaking during the debate in the House of Commons | Source: UK Parliament

Leader of the DUP, Sir Jeffrey Donaldson, told the Commons, “This is progress. Does it give us everything we want? It does not….It is important constitutional legislation that safeguards our place in the United Kingdom. We will hear later about further changes to the law that will protect our place in the UK internal market. Taken together with all the proposals in the Command Paper, I believe we have a basis for moving forward.”

Colum Eastwood (SDLP) commented that the Command Paper “undermines north-south co-operation and has far too much focus on east-west co-operation.”

Noting the commitments in the Command Paper, Hilary Benn enquired about which checks on goods moving from Great Britain to Northern Ireland will be removed. He was told by Minister of State for Northern Ireland Steve Baker, “The changes will apply both for identity or visual checks and for physical checks. We will take powers shortly to make direction to the Department of Agriculture, Environment and Rural Affairs to ensure that is the case.” Benn also asked how checks and formalities on non-qualifying goods that enter GB from Northern Ireland through Cairnryan would work, if there is no Border Control Post in Cairnryan. Minister Baker stated, “We are working through the options.”

The House of Commons approved the legislation, which is due to be considered in the Lords on 13 February.

Peers also debated the deal. Lord Dodds (DUP) stated, “The Irish Sea border still exists because many British goods coming from Great Britain to Northern Ireland, especially in manufacturing, still need to go through full EU compliance checks and procedure”. He concluded, “Although there are improvements to the operation of the Windsor Framework, which in itself was a tweak to the original Protocol, the fundamentals of it remain in place.”

EU reaction

The day the deal was announced (31 January), European Commission Vice-President Maroš Šefčovič spoke with the UK Foreign Secretary Lord Cameron, following a call with the Secretary of State for Northern Ireland. Šefčovič noted that the Commission will “analyse carefully” the texts published. The UK and EU leaders noted the agreement on tariff rate quotas “reflected their shared commitment to the full implementation of the Windsor Framework”. Taoiseach Leo Varadkar said on Thursday, “There are definitely going to be some questions about what was agreed between the UK government and the DUP, but nobody is at this stage saying that there are any red flags or anything, or that gives us major concern.”

Analysis and further reading

The House of Commons Library has published briefings on the deal to restore the devolved institutions; the Northern Ireland Protocol, and changes under the Windsor Framework; and on the UK Government’s Command Paper. The Institute for Government has published an explainer of the deal. Newcastle University Professor of Law Colin Murray has published his assessment of the agreement. Open University Politics Professor Simon Usherwood has posted his thoughts.

UK Government implements its post-Brexit Border

Last week, the first phase of new UK border controls, set out in the Border Target Operating Model (BTOM) entered into force. Since 31 January, export health certificates and phytosanitary certificates are required for medium-risk animal products, plants, and plant products, and high-risk food and feed of non-animal origin imported to GB from the EU (including Ireland).

From 30 April, documentary checks and physical and identity checks will be carried out on these products imported to GB from the EU. For Ireland, this applies from 31 October 2024, and a date for physical checks is to be confirmed. Safety and Security declarations will be required for EU imports from 31 October.

The Government says the introduction of controls “sharpens the competitive advantage of Northern Ireland businesses, who now have unique unfettered access to both their primary market in GB as well as the EU single market.”

The Institute for Grocery Distribution has identified areas of uncertainty regarding the BTOM, including the availability of vets to sign off Export Health Certificates. The NI Customs and Trade Academy has published additional guidance for traders moving ‘Northern Ireland Qualifying goods’ via Ireland to GB.  UKG has published a technical questions and answers document.

Other news

• The Specialised Committee on the Implementation of the Windsor Framework met on 24 January 2024. UK and EU officials discussed the implementation of the Framework in the areas of agri-food and customs. They also took stock of the work of the Joint Consultative Working Group and its structured sub-groups.
• The Northern Ireland Human Rights Commission’s application for a judicial review of the Illegal Migration Act began on 29 January. It considers the Act to be in breach of the UK’s obligations under Article 2 of the Windsor Framework. In its Command Paper, the UK Government refers to the UK’s immigration policy applying “uniformly across the United Kingdom, notwithstanding some recent incorrect assertions about the impact of the Windsor Framework on, for example, the Safety of Rwanda (Asylum and Immigration) Bill”. The Government’s position is that “the Windsor Framework is not engaged by the Bill” as it applies “only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) Agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.”
• On 22 January, the UK Government published its first progress report on revoking and reforming retained EU law (REUL). Such reports will be produced every 6 months until June 2026. The Government has plans to revoke or reform approximately 500 instruments in 2024. The Commons European Scrutiny Committee has written to the Business Secretary Kemi Badenoch following this report. It read the report “with deep concern” and states that “REUL reform must be made a Departmental priority and far greater time and resource directed at reform than is apparent from your report.” The Commons Library has published a briefing on progress to reform REUL to date.
• The UK Government intends to legislate this spring to continue recognising the EU CE product safety marking indefinitely for many products. This means businesses can use either the UKCA or CE marking to sell products in GB. This will not apply to medical devices and construction products, among other products.
• The European Committee of the Regions-UK Contact Group met on 24 January. Local and regional politicians in the EU and UK called for regions and cities to be allowed a greater role in the Trade and Cooperation Agreement. The European Committee of the Regions (CoR) established a CoR-UK contact group to ensure political dialogue continues with UK local government and devolved administrations post-Brexit.
• The UK Department for Business and Trade (DBT) has published an overview of “Britain’s Brexit successes” to mark the 4^th anniversary of Brexit.
• The UK in a Changing Europe has published its latest UK-EU divergence tracker for Q4 2023. Joël Reland comments that the Government is making “symbolic rather than substantive” changes to EU-derived laws. The think tank has also published its latest tracker of UK-EU relations for Q4 2023.
• The Finance Interministerial Standing Committee met on 25 January 2024.
• On 30 January, European Commission Vice-President Maroš Šefčovič met with the Oireachtas Committee on EU Affairs, where they discussed the Windsor Framework, among other matters.
• The Commons European Scrutiny Committee published its latest report on 30 January. It considers new EU rules for mobile phones and tablets on sustainability and energy performance, announced as part of the EU’s ‘European Green Deal’. Under the terms of the Windsor Framework, and subject to the potential use of the Stormont Brake, this would apply in Northern Ireland from 20 June 2025.
• Scottish Parliament Research has published an update on Intergovernmental activity for Q4 2023. 
• The minutes of the meeting of the EU-UK Specialised Committee on Participation in Union Programmes of 4 December 2023 have been published. The EU and UK adopted a decision on the UK’s participation in the EU’s Horizon research and innovation programme at the meeting, following a long delay. Minutes have also been published for the meeting of the Trade Specialised Committee on Goods on 8 November 2023.