Brexit & Beyond newsletter

26 February 2024

Welcome to the 26 February 2024 Brexit & Beyond newsletter

The Windsor Framework Democratic Scrutiny Committee heard evidence from The Executive Office. The Committee for the Economy discussed post-Brexit arrangements with Departmental officials. In plenary, MLAs discussed NI’s economic strategy and the impact of Brexit on the fishing industry. The Secretary of State for Northern Ireland gave evidence on the Windsor Framework and the Government’s recent Command Paper. Today’s newsletter also covers recent developments around the implementation of the Framework and Command Paper, QUB’s latest poll on the Framework, and Article 2.

This week at the Assembly, the Minister for the Economy will take questions from MLAs; the First Minister and deputy First Minister will appear before the Committee for The Executive Office. The Committee for Agriculture, Environment and Rural Affairs will be briefed by the Department, and the Windsor Framework Democratic Scrutiny Committee will hear evidence from academics on ‘dual divergence’.

• Windsor Framework Democratic Scrutiny Committee
• Committee for the Economy
• EU Exit matters in Plenary
• Secretary of State on the Windsor Framework and ‘Safeguarding the Union’
• Windsor Framework and ‘Safeguarding the Union’ implementation
• QUB poll on the Windsor Framework
• Article 2
• Other news

Windsor Framework Democratic Scrutiny Committee

On 22 February, the Democratic Scrutiny Committee heard evidence from officials in The Executive Office (TEO) on their role in assisting the Committee. Tom Reid, Deputy Secretary on International Relations and EU Exit, highlighted the tight timelines for TEO to provide information to the Committee about the impact of EU law in Northern Ireland. The Committee has five working days to decide whether to hold an inquiry on an amending/replacement EU law, following notification of its publication (as set out in the regulations). He said the ‘dry run’ exercise of the Committee’s processes highlighted “capability and capacity” issues in the NI civil service (NICS). He noted that UK Government officials in Whitehall are no longer studying the impact of EU regulations as they did when the UK was a member of the EU, adding that NICS is a small civil service and will not have the same capacity to deal with these matters. He emphasised that engagement with London and the EU is important “to make sure things aren’t falling through the cracks”. He stated “planned divergence, where there is an understanding of the impact on Northern Ireland - generally, that can be mitigated.” However, the greater concern is “unintended divergence.”

Head of the Office of the Northern Ireland Executive in Brussels Aodhán Connolly explained the work of the office in tracking EU legislation and providing this information to NI departments. He informed MLAs that the European Commission held a seminar on its annual Work Programme, which was attended by civil society, stakeholders, businesses and over 60 members of the civil service. They now have a guarantee that this will take place yearly. In February 2023, the Commission set out various commitments on enhanced engagement with NI stakeholders.

The Windsor Framework Democratic Scrutiny Committee

The Committee also heard about the role of the Assembly Research and Information Service (RaISe) in assisting the Committee. RaISe will have a role in tracking EU legislation and identifying witnesses for future inquiries. The Committee was informed about EU consultation processes and scrutiny arrangements in the Commons and Lords.

Following notification of a proposed replacement EU Act, the Committee agreed to seek legal advice and an initial departmental assessment of the proposal to help it decide whether to monitor the proposal. This proposed law concerns equivalence of field inspections and seed productions carried out in the Republic of Moldova and Ukraine.

The Committee has published its correspondence to MLAs and the Executive Ministers about the function of the Committee and its processes.

Committee for the Economy

On 22 February, the Committee for the Economy heard evidence from the Department for the Economy as part of its ‘First Day Brief’. Shane Murphy, head of the International and Economic Relations Group, stated that regulatory divergence is “very much a feature of the post-Brexit arrangements”. He said the Windsor Framework brought in a “more pragmatic, risk-based and flexible approach” to the implementation of the arrangements and “more stable” EU-UK relations. He added that the Safeguarding the Union Command Paper is a recent example of this flexibility and pragmatism being put into operation.  Murphy commented that contrary to the suggestion of regulatory change being “the dog that hasn’t barked”, there have been a few examples and this is something to expect more of in the future: “we are in a more complicated environment,” he stated.

Murphy was asked about various issues in relation to the Windsor Framework, including the impact of the higher threshold for ‘not at risk’ goods, the customs duty waiver scheme, communication of the arrangements to businesses, new arrangements for parcels, EU rules on state aid and the Azores judgement, and the marketing of dual market access. You can watch the session back on NI Assembly TV.

EU Exit matters in Plenary

Economic strategy

On 19 February, the Minister for the Economy Conor Murphy set out his economic vision for Northern Ireland, with four key objectives: to increase the proportion of working-age people in ‘good jobs’, to promote regional balance, raise productivity and reduce carbon emissions. Some of his comments focused on Northern Ireland’s post-Brexit trading arrangements. He told MLAs, “as a result of the Windsor Framework, we alone can export goods to the British and EU markets without the frictions and paperwork that others now endure. The Windsor Framework also protects the all-Ireland economy, which has tremendous unrealised potential, so there are opportunities for change.”

Minister for the Economy Conor Murphy speaking during the debate

He said the post-Brexit trading arrangements “should be allowed to bed in and not continuously be picked at over the time ahead so that we can give people some sense of certainty by working on that proposition and taking it abroad”.

He said the economic strategy involves “using the Windsor Framework to grow local exports and attract better-quality FDI, taking full advantage of the all-Ireland economy, genuine collaboration with business representatives, trade unions and academia, and setting a clear mission of a highly productive, zero-carbon, regionally balanced economy with good jobs.”

Fishing industry

Minister for Agriculture, Environment and Rural Affairs was asked about the Home Office's announcement of an increase to the minimum salary required for people arriving on the skilled worker visa, which will have implications for the fishing industry. Minister Muir noted that immigration is an excepted matter for the UK Government. However, he plans to write to the Home Office on this. The Minister was also asked about issues for NI fishermen in landing catch from UK waters.

Minister Muir went on to outline his overall approach, saying, “I also want to focus on working with others to find solutions...My task at hand, and this is what I intend to do, is to make the job of managing EU exit exceedingly boring. We have had far too much drama. What we need is delivery.”

Secretary of State on the Windsor Framework and ‘Safeguarding the Union’

The Secretary of State for Northern Ireland Chris Heaton-Harris gave evidence to the Northern Ireland Affairs Committee on 20 February, which included issues related to the Windsor Framework (WF). Stephen Farry (Alliance), referring to the Stormont Brake, suggested that “any uncertainty or delay [regarding changes to EU law under the WF] may create a certain unease or a problem for investors.” Heaton-Harris said, “I completely understand that business wants continuity and certainty, but it also has to work with the fact that we live in a democracy with regular elections, so Governments, MPs and policies change…This is a very important element of restoring democracy. Giving the people affected by decisions a say in those decisions is an important check and balance.”

On a recent visit to Parliament Buildings, the Secretary of State for Northern Ireland Chris Heaton-Harris, Prime Minister Rishi Sunak, and Speaker Edwin Poots

Northern Ireland Retail Movement Scheme

Carla Lockhart (DUP) referred to commitments in the Government’s Safeguarding the Union Command Paper on removing checks on goods movements from GB to NI. She noted that regulation 13 of the Windsor Framework (Retail Movement Scheme) Regulations 2023 sets out requirements for 5-10 % of identity checks on specified retail goods. She asked when this would be repealed. The NI Retail Movement Scheme (NIRMS) means food products for supermarkets can enter NI with fewer checks and controls. Certain food items are required to have labels stating ‘Not for EU’, and the Windsor Framework set out a phased reduction in checks.

Mark Davies, Director of the Windsor Framework Taskforce in the Cabinet Office, stated the new arrangements would remain in place so the Government can “retain the ability to perform checks where they are necessary to avoid abuse, disease risks, criminality and smuggling”. He stated, “it is important to note that we are not proposing to remove those fundamental underpinnings of how you can function a scheme and a set of schemes that we have always advocated, since 2021 and beyond, as the means to operate a UK internal market system.”

Lockhart also raised the potential non-application of an EU law and asked, “Is there a risk that Northern Ireland will be sitting somewhere in the middle?” Davies said, “Once the brake is pulled, the rule is disapplied in Northern Ireland. That does not mean that you revert to some precursor EU rule…This will simply maintain the status quo, which could derive from retained EU law. It could derive from a domestic implementing regulation or from EU laws, but that simply reverts to the status quo ante.” He said NI businesses “would continue exactly as they were” and “the unfettered access legislation…maintains market access to GB in full, so there is no impact whatsoever on their ability to access the EU or the UK market. There is no automatic effect either in terms of their access to the EU market, where again they can continue to trade.” He suggested this debate about dual divergence “focuses more on high theory rather than practicality, when the fact is that nothing will change in Northern Ireland and nothing will disrupt the arrangements under which people have been operating. In the meantime, two sets of market access will be maintained.” Lockhart replied, “That is all very convoluted and probably difficult for businesses to keep up with in terms of what is actually applicable to them.”

Lockhart also raised issues around the supply of veterinary medicines for NI, issues for the equine industry, rare breed sheep, plants and cut flowers. She was told the Government is “working at pace on the full range of commitments that were set out in the Command Paper.”

Asked about the position of the European Commission on the Command Paper, the Secretary of State said there has been “pretty constant contact between us and our European Union partners on a whole host of issues.” He had a conversation with Vice-President Maroš Šefčovič, ahead of the Command Paper launch, who “generally welcomed the measures to get Stormont back up and running.” He commented, “As a whole, this package really concerns Northern Ireland’s place in the Union of the United Kingdom and our internal market, which is overridingly an internal matter for the UK Government.”

Windsor Framework and ‘Safeguarding the Union’ implementation

Regulations and impact on NI trade

Following consideration in the Commons and Lords, the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 and the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 have been made and came into force on 20 February 2024.

In explanatory notes for the Automated Vehicles Bill, published on 20 February, the Government includes a declaration “that the Bill as introduced into the House of Commons does not contain provision which, if enacted, would affect trade between Northern Ireland and the rest of the United Kingdom. Accordingly, no statement under section 13C of the European Union (Withdrawal) Act 2018 has been made”. This reflects a new provision set out in the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 and the Safeguarding the Union Command Paper. The regulations insertedSection 13C to the European Union (Withdrawal) Act 2018 and means if the Bill affects trade between Northern Ireland and GB, the relevant Minister must make a statement that it would not “have a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”. Otherwise, the Minister must state that such an assurance cannot be given, but that the Government intends to proceed with the Bill.

Labelling

The Financial Times reports that the food and drink industry is warning against the UK Government’s plans to extend ‘not for EU’ labelling across the UK. From October 2024, the UK Government intends to extend Windsor Framework labelling requirements to relevant products in England, Scotland and Wales “to ensure no incentive arises for businesses to avoid placing goods on the Northern Ireland market”. It has launched a consultation, which closes on 15 March. Products such as prepacked meat and fresh milk had to be labelled since 1 October 2023. From October 2024 and July 2025, various other products must be individually labelled. This corresponds with a reduction in identity checks on these items, which move under the NI Retail Movement Scheme.

The Food and Drink Federation says the plan would cost “hundreds of millions of pounds” and impact investment. The Federation also warned that exports to Ireland would be “particularly badly impacted” and that some larger companies were “considering abandoning their exports to Ireland altogether”. The Government is providing £50 million to support businesses with the new labelling rules.

Tariff rate quotas and UK trade deals

On 23 February, the Working Party on the United Kingdom (a preparatory body under the Council of the EU, made up of representatives from member states) considered a draft decision of the EU-UK Joint Committee. This 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. The decision is expected to be adopted at the next meeting of the EU-UK Joint Committee.

QUB poll on the Windsor Framework

Queen’s University Belfast has published its latest ‘Testing the Temperature’ report, which considers views of voters in Northern Ireland on Brexit, the Windsor Framework, and the recent ‘Safeguarding the Union’ agreement. The poll was conducted 2-5 February 2024. Overall views on the Protocol/Windsor Framework (WF) have largely remained similar to recent polls. The survey finds a slight decline following the recent agreement in those disagreeing that the WF is overall a ‘good thing’ for Northern Ireland (29%, compared to 35% in October 2023).

The Windsor Framework ranks low among voters’ concerns: only 2% of respondents consider it their top concern in a list of ten; almost two thirds of voters (62%) agree that political debate in Northern Ireland should ‘move on’ from the Protocol/Windsor Framework; 24% disagree.

Views on the Windsor Framework and its implications | Source: QUB

Regarding this year’s democratic consent vote (provided for in Article 18 of the Windsor Framework), 56% of voters are in favour of the continued application of Articles 5-10; 30% are against (down from 36% in October 2023).

64% of respondents claim they understand how the Stormont Brake works. 53% of respondents do not want MLAs to make use of the Stormont Brake irrespective of the consequences, while almost a third (32%) do.

Slides and recording of a discussion of the latest poll with QUB academics can be viewed here.

Article 2

The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have submitted written evidence to the Commons European Scrutiny Committee’s inquiry into the progress and ‘mechanics’ of retained EU law reform. The Commissions advise that “particular care should be taken by the NI Executive and UK Government when repealing or amending retained EU / assimilated law” to ensure this is not contrary to Article 2 of the Windsor Framework. Under 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 Commissions are “concerned by the breadth of delegated powers provided under the REUL Act and the potential for inadvertent breach of Windsor Framework Article 2 or wider diminution of human rights and equality in the absence of detailed parliamentary scrutiny.”

RTÉ reports that a group of Irish MEPs has written to European Commission Vice-President Maroš Šefčovič urging the EU to ensure that the human rights and equality provisions in the Windsor Framework agreement are maintained. The MEPs note the Commission’s commitment on increased engagement with stakeholders in NI. They state, "Given the implications of Brexit for the enjoyment of rights across the island of Ireland, it is critical that this engagement should include equality and human rights stakeholders in Northern Ireland, including the Commissions [which oversee Article 2], to ensure their views are heard and taken into consideration."

Other news

• The European Parliament Delegation to the EU-UK Parliamentary Partnership Assembly met last week to prepare for the 5^th EU-UK Parliamentary Partnership Assembly (PPA) on 18-19 March. MEPs also discussed political developments in Northern Ireland.
• In a written answer to Alex Easton, Independent MLA, the Minister for the Economy states that the Shared Prosperity Fund (SPF), which replaces EU Structural Funds, “compares poorly” with what Executive Departments would have expected to receive from these EU funds. He stated that the Department of Finance continues to press for NI Executive control over distribution of this funding.
• Last Wednesday the Speaker welcomed US Ambassador Jane Hartley to Parliament Buildings.
• In the House of Lords, Lord Dodds raised concern that the Animal Welfare (Livestock Exports) Bill will not apply in Northern Ireland, as it follows EU legislation in this area under the Windsor Framework. The Bill would prohibit the live export of certain animals, such as cattle, sheep and pigs, from Great Britain for slaughter.
• The Senedd Economy, Trade and Rural Affairs Committee has received a response from the UK Government on the implications of the Border Target Operating Model, and the Windsor Framework for Wales. The Minister states that further guidance will be issued shortly on indirect movements (via Ireland) of qualifying Northern Ireland goods, which will benefit from unfettered access to GB.
• Today, the Senedd Legislation, Justice and Constitution Committee will hear evidence from the Minister for the Constitution. Matters for discussion include the implications for Wales of the UK Government’s Safeguarding the Union Command Paper, and issues such as managing divergence and the role of devolved governments in the new post-Brexit structures.
• The UK border force and Frontex, the EU European Border and Coast Guard Agency, have signed a new working arrangement.
• The Inter-Ministerial Standing Committee (IMSC) met on 20 February 2024 for the first time since the re-establishment of the Northern Ireland Executive.
• The Minister for Enterprise, Markets, and Small Business Kevin Hollinrake has written to the European Scrutiny Committee about the Government’s plan to continue recognition of the EU CE product safety marking for a number of products. This means businesses can continue to place goods on the GB (and EU) market using the CE mark. The CE mark is required in NI under Windsor Framework. The legislation is to be brought to Parliament in spring, using powers under the Retained EU Law Act (2023). UKG is holding webinars in the coming weeks on its approach for using UKCA and CE markings to place products on the GB and NI markets.
• The Commons Public Administration and Constitutional Affairs Committee has published a report on Parliamentary scrutiny of International Treaties in the 21st century. It notes, “While the UK was an EU Member State, many of the treaties the UK was party to were negotiated and scrutinised at the EU level. Now the UK has left the EU, treaty scrutiny arrangements have reverted to those that emerged and crystallised almost a century ago.”
• Euractiv reports concerns about the UK’s Data Protection and Digital Information Bill: it could violate the Trade and Cooperation Agreement and have consequences for law enforcement cooperation between the EU and UK.
• The Specialised Committee for Public Procurement under the Trade and Cooperation Agreement (TCA) has published minutes on its meeting of 16 November 2023.