Brexit & Beyond newsletter

4 March 2024

Welcome to the 4 March 2024 Brexit & Beyond newsletter

Last week at the Assembly, the Windsor Framework Democratic Scrutiny Committee heard evidence on EU-UK divergence. The Committee for Agriculture, Environment and Rural Affairs heard from the Department on its work on post-Brexit trading arrangements, animal tagging, and veterinary medicines. In plenary, MLAs discussed the Electronic Travel Authorisation requirements, the fishing industry, post-Brexit trading arrangements and funding. The Inter-parliamentary Forum met at the House of Lords. The High Court in Belfast made a judgement which relates to Article 2 of the Windsor Framework and the 2023 Legacy Act. Finally, today’s newsletter includes the latest on implementing the Windsor Framework, ‘Safeguarding the Union’, and the UK’s post-Brexit border controls.

• Democratic Scrutiny Committee – divergence and Northern Ireland
• Interparliamentary Forum
• Committee for Agriculture, Environment and Rural Affairs
• EU Exit discussions in the Plenary
• Article 2
• Implementing the Windsor Framework and ‘Safeguarding the Union’
• Other news

Democratic Scrutiny Committee – divergence and Northern Ireland

On 29 February, the Windsor Framework Democratic Scrutiny Committee heard evidence from Dr Lisa Claire Whitten, Research Fellow at Queen’s University Belfast, and Joël Reland, Research Associate, UK in a Changing Europe. Reland has produced a series of quarterly divergence trackers, covering active divergence (the UK changes its rules), passive divergence (the EU changes its rules and the UK does not), and internal divergence (changes in rules between different parts of the UK). He said it is “more or less impossible” to systematically understand all forms of divergence. He noted the consequences of active divergence (of which there has been little) are less for Northern IreIand, given the UK Government’s commitment to ‘unfettered access’ for NI goods. In contrast, the EU is an active regulator, and while passive divergence has been addressed to an extent by the Windsor Framework (see the arrangements for food products), there is a “continued possibility” of GB-NI divergence for manufactured goods. He highlighted EU regulations on eco-design, packaging, deforestation, and forced labour and supply chains, which could “create new barriers to exporting to Northern Ireland because producers in Great Britain would have to change their practices” - they may decide it’s too costly to supply NI. Reland sees this as the “central divergence challenge”.

Dr Whitten has written extensively on NI’s arrangements under the Windsor Framework and the changes to EU law applying here. She explained the “complexities” of Northern Ireland’s regulatory landscape: its unique devolution settlement, the relationship on the island of Ireland, and post-Brexit trading arrangements. She said divergence “isn’t inherently negative” but about management and consideration of the costs and benefits. She highlighted that if the Stormont Brake is applied, “it won’t be a wholesale divergence…it will be a ‘not updated’ version and a limited form of divergence” from the EU act. The Joint Committee decision of March 2023 sets out that the Brake should be used “in respect of the smallest severable element of the [EU] act”. Whitten pointed out that the EU does have the possibility of taking remedial measures if the Brake is pulled (following the various processes set out in the legal texts), which could be market access limitations, but this is likely to be specific to the circumstances.

Dr Lisa Claire Whitten, Research Fellow at Queen’s University Belfast, speaking to the Democratic Scrutiny Committee

The witnesses discussed some key examples and potential consequences of EU-UK regulatory divergence (both the content and timing of these regulations). UK and EU regulations on gene-edited plants could potentially impact NI farmers; changes in UK immigration law regarding salary thresholds could impact NI’s competitiveness, given its proximity to the Irish labour market; and the EU forced labour regulation may mean higher costs for businesses in NI, and GB companies may be deterred from supplying NI. Whitten noted that the UK is now following the path of the EU in planned legislation on deforestation, and plans to introduce a Carbon Border Adjustment Mechanism. The Government refers to the EU CBAM in its Command Paper and its intention to implement a UK CBAM by 2027, stating “there would be a vote on a cross-community basis…on any EU notification seeking to add their CBAM Regulation to the Windsor Framework”.

Reland said “it's one thing to have a list of regulations, it's another thing to actually understand what those regulations mean and the impact that they're going to have on society.” He said this will be a “big challenge” and it would be helpful to have more information on the UK Government’s intentions i.e. if it plans to replicate an EU law. Reland commented that while there is much focus on the Stormont Brake, “there is a much deeper and wider system of processes and discussion which should be going on.” Whitten said that one of the consequences for NI is simply complexity, emphasising the need for tracking: “if unmonitored, that’s much more likely to be negative and fall heavily on some people,” she said.

Windsor Framework and Safeguarding the Union

Whitten said the new body, Intertrade UK, to be established as set out in the Command Paper, is an important forum to discuss internal implications of regulatory change. She added that the Windsor Framework commitments on stakeholder engagement give “really privileged access” for Northern Ireland with the EU. She said, “if that new architecture can be used effectively...the idea…is to up-stream issues” so an EU law doesn’t have a negative impact on people’s lives here.

Reland noted that “more explicitly than ever before, [the Command Paper] acknowledges the responsibility of the Government…to think about how its regulatory decisions impact the whole of the UK internal market”. He said this hasn’t been thought about in-depth, so putting it on record is “a really meaningful difference”.

Dual divergence

Reland called trivergence a “secondary issue”, but explained some potential implications. For example, if both the EU and GB introduced restrictions on chemicals, but NI did not: “you have the risk of dumping, you have the risk of lower quality goods…being allowed still into Northern Ireland - that's obviously probably not a scenario that anyone desires.”

Interparliamentary Forum

The Inter-parliamentary Forum (IPF) met at the House of Lords on 29 February. The Forum aims to provide a mechanism for dialogue and cooperation on challenges arising from the new constitutional arrangements following Brexit, and to co-operate in finding solutions to overcome them. Its priorities include scrutiny of inter-governmental relations, international agreements including the EU-UK Withdrawal Agreement and Trade and Cooperation Agreement, the UK internal market, Common Frameworks, and the legislative consent process. Read more on our website.

Chairs of the Committee for the Executive Office Paula Bradshaw and Committee for Finance Matthew O’Toole attended from the NI Assembly. Following the Forum meeting, they held an informal meeting with Lord Jay, Chair of the Lords Sub-Committee on the Windsor Framework.

The meeting of the Inter-parliamentary Forum (IPF) at the House of Lords on 29 February | Source: Jack Marshall/House of Lords

Committee for Agriculture, Environment and Rural Affairs

The Committee for Agriculture, Environment and Rural Affairs was briefed by the Department’s Veterinary Service and Animal Health team. Dr Robert Huey, Chief Veterinary Officer, explained the role of the department in the implementation, delivery and enforcement of public health controls, and its work relating to obligations under the Windsor Framework. He informed the committee that in the last year, 140,000 consignments requiring checks came through NI’s points of entry, meaning 140,000 documentary checks were carried out. The Windsor Framework established two ways of moving goods from Great Britain to Northern Ireland. The Department has initiated a Windsor Framework program to ensure provisions set out in relevant legislation are being delivered. Huey said the Northern Ireland Retail Movement Scheme and the Northern Ireland Plant Health Label Scheme have been “successfully implemented”, by the Department working with the UK Government. The next phase involves “refinement and enhancement of the schemes” and work continues on the NI pet movement scheme, and the SPS post and parcel regime, which are be in place later this year.

Veterinary medicines

Huey explained issues around veterinary medicines and work to find solutions, saying “there remains ongoing negotiations between UK Government and the EU; decisions reached or not reached could have a significant impact on animal health and welfare and potentially on Northern Ireland’s ability to trade”. The Minister will soon meet key stakeholders on this matter. A scoping exercise is being carried out on the application of the legislation and the issues facing veterinary medicines in Northern Ireland, which will inform contingency planning. Huey added that the Department is “one [step] removed from this” - it's a UK-EU negotiation. He declared, “there are solutions to this but like a lot of issues around Windsor Framework, the issues are political…we either need a political solution or we'll be trying to implement inelegant solutions.” He added that it is difficult to quantify the problem as they are relying on data which is a year old.

Huey also raised the shortage of vets, saying “on day one we never had enough staff to carry out the checks that we needed…the instructions that I had given to staff is that we are on a pathway towards full compliance with the requirements of the European Union…what we do, we will do well.” The Department has also experienced shortages of plant inspectors and stevedores.

Tagging animals

Officials explained the requirements for tagging animals for trade with the EU, under EU animal health law which applies in Northern Ireland. On Friday, the Department announced the change of the prefix code on Northern Ireland livestock tags from ‘UK’ to ‘XI’. This will be implemented in January 2025, with a transitional period in place until then. Huey explained, “movement of animals from Northern Ireland to other places is a really important part of our strategy for agri-food”. He said 400,000 lambs go to Ireland every year for slaughter and “putting that in jeopardy is not something that we want to do”. The XI tag code identifies Northern Ireland as being part of the UK and part of the EU for SPS purposes.

EU Exit discussions in the Plenary

New EU act

On 26 February, during members’ statements, Steve Aiken (UUP) raised the notification of a new EU regulation on protection of geographical indications for craft and industrial products. According to new arrangements set out in the Windsor Framework Democratic Scrutiny Regulations 2024, this is subject to an ‘applicability motion’, before the UK can agree in the EU-UK Joint Committee that it be added to the Protocol/Windsor Framework. The motion is to be tabled by the first Minister and deputy First Minister within two weeks following the notification on 21 February.

Electronic Travel Authorisation (ETA)

In questions to the Minister for the Economy, Conor Murphy highlighted the UK’s requirements for an Electronic Travel Authorisation: all individuals (except British and Irish citizens) will have to seek permission to travel to the UK in advance. This will also apply to tourists arriving into the Republic of Ireland who wish to visit Northern Ireland. He said this would impact tourism and big events hosted in NI: “A lot of this is based on international tourism and international visitors coming here, staying and spending money. If we do not resolve the issue of the electronic travel authorisation (ETA), it could present an enormous challenge in future.”

He went on to say, “The ETA is already causing very serious concerns. I have no doubt that, for some of the projects that we are talking about, including the big competitions and other events that we bring here, it is a factor in the minds of the organisers, because they depend on international tourism." He explained that around 70% of international visitors to Northern Ireland travel through Ireland. The Department intends to consult the Northern Ireland Tourism Alliance, to “build up the evidence on the concerns on the ETA and to bring that to the Home Office in London in order to make a particular case for a relaxation of it for tourism”. He concluded, “tourism potential could be seriously undermined if we have a significant restriction on travel across the border.”

Windsor Framework

Minister Murphy welcomed greater certainty in NI’s post-Brexit trading arrangements. He said this helps ensure international investors understand what the position is – “that means North/South, east-west and the dual access that we have” but also local firms “that clearly want to get involved in exporting into the South, Europe and internationally have a clear understanding of the arrangements.” He commented, “Any continued uncertainty will continue to damage not only international investment but investment by local people in their businesses.”

Funding

In response to questions on educational and vocational training, Minister Murphy highlighted the loss of EU funding such as the European Regional Development Fund (ERDF) and the European Social Fund (ESF). He said, “It has not been replaced, despite the Government's promises. We are left with a significant hole in the Department's budget in that regard. It will be a challenge to try to find the necessary resources to support some of those programmes and courses that traditionally used that funding”.

Fishing industry

On 27 February, a private members’ motion brought by the DUP was debated on NI’s fishing industry. Some comments from MLAs related to Brexit and its impact on the industry. Colin McGrath (SDLP) said, “They were promised that there would be some sort of panacea for them and that their future would be golden because Brexit would help them to take back control. Of course, that has not happened; in fact, there has been a downturn in some of the capacity in fishing as a result of Brexit. The uncertainty that Brexit has brought to all industries has had a massive impact.” He also referred to impact of the UK’s new immigration laws on the fish-processing sector.

Jim Allister (TUV) stated, “The EU's common fisheries policy has crucified our fishing industry with punitive quotas and needless bureaucracy and is constantly on the back of fishermen.” He said after Brexit, “we still have the problem of the Protocol”, raising concern about restrictions on transporting catch from GB to NI and prohibitions on boats from Northern Ireland fishing in the 6-12 miles of Irish waters.

Minister for Agriculture Environment and Rural Affairs Andrew Muir stated he is “committed to continuing the stakeholder engagement to ensure that the UK 'Joint Fisheries Statement' policies are implemented effectively and deliver a thriving, sustainable fishing industry for Northern Ireland whilst improving the marine environment.” The UK Fisheries Act provides the legal framework for the UK to operate as an independent coastal state. It requires a Joint Fisheries statement (JFS) to be produced between the four parts of the UK: the JFS on the direction of UK fisheries management was published in November 2022. Muir said he would shortly consider a draft five-year strategic plan for the support of the marine and fisheries sectors. If funding is secured for the scheme, he said there would be “significantly more support available for industry annually over the next five years than was available under the recent European Maritime and Fisheries Fund”.

Minister for Agriculture Environment and Rural Affairs Andrew Muir

Article 2

On 28 February, the High Court in Belfast ruled on provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Summary judgement , full judgement). Mr Justice Colton found that “the immunity from prosecution provisions are incompatible with articles 2 and 3 of the European Convention on Human Rights (“ECHR”) and article 2 of the Windsor Framework (“WF”) and should therefore be disapplied.” The court held that in enacting the immunity provisions in the 2023 Act, the Government had “acted incompatibly with the EU Victims’ Directive and the Charter of Fundamental Rights…this could not have occurred had the UK remained in the EU.” The NI Human Rights Commission has responded to the judgement. Previously, Anurag Deb (Queen's University Belfast) and Colin Murray (Newcastle Law School) have written about the Article 2 provisions.

Implementing the Windsor Framework and ‘Safeguarding the Union’

On Monday 26 February, the House of Commons considered a ’Humble Address’ to the King.  This followed the Government’s commitment in the ‘Safeguarding the Union’ Command Paper to “provide a mechanism for Parliament to affirm its commitment to the Acts of Union and that there is no basis in the Belfast (Good Friday) Agreement for joint authority arrangements with the Government of Ireland”. The 2.5 hour debate included comments from MPs on the applicability motion to be brought before the Assembly, the newly established Democratic Scrutiny Committee, the ‘red lane’, veterinary medicines, the volume of checks on goods from GB to NI, and commitments in the Safeguarding the Union paper. The Humble Address was considered in the Lords on 27 February.

The Commons heard on Wednesday that the UK East-West Council will have its first meeting in Belfast in March.

Minister Baker was asked about the reduction in checks set out in the Command Paper. He reiterated the Government’s intention to “provide clear legal direction to the Department of Agriculture, Environment and Rural Affairs and other UK Government authorities, through our risk management approach, to eliminate any physical checks when goods move within the UK internal market system” (with some exceptions). He hopes to provide an update on these plans in greater detail before the Easter recess.

The UK Government has published guidance on arrangements for moving parcels from GB to NI, which will come into effect in September.

The Senedd Legislation, Justice and Constitution Committee heard from the Counsel General and Minister for the Constitution Mick Antoniw last week. Commenting on the Safeguarding the Union Command Paper, Antoniw said, “We didn't have any advance engagement in terms of that paper or in respect of the proposal for the creation of the [East-West] council”. He added, “nor is it clear to us what the changes to the Windsor Agreement might actually mean in terms of Welsh trade. We clearly do have an interest because our links with Northern Ireland and with the Irish Republic are significant.” He added, “The lack of engagement hasn't been helpful. Now, as far as I'm aware, there are discussions that are under way.”

The Government set out a timeline for the introduction of new post-Brexit border controls on EU imports, including for Ireland. However, it has yet to set a date for the commencement of physical checks on goods from Ireland, and says that won't be before October. The Welsh Minister for Economy states they have yet to see UK Government proposals “that address the implications of the commitment that there will be no Border Control Post at Cairnryan, together with a package of proposed anti-avoidance measures that will give credibility to the controls adopted”. He said, “given the nature of the issues still to be resolved, and our commitment to give a year’s notice of changes to businesses affected, it is difficult to see how physical checks can be implemented before Spring 2025.” The Minister highlights persistent concerns form the Chief Veterinary Officer, including around the commercial import of live animals from elsewhere via NI. The Minister will appear before the Senedd Economy, Trade and Rural Affairs Committee on Wednesday.

Other news

• The UK Government has published the Official Controls (Fees and Charges) (Amendment) Regulations 2024 , which will enable fees and charges for official controls as set out in the Border Target Operating Model (BTOM). The draft affirmative regulation is being made under the Retained EU Law Act 2023.
• The UK and Japan have agreed 37 Geographical Indications (GIs) - special protected status to safeguard against imitation - for UK food and drink. Products include Lough Neagh Eel, Lough Neagh Pollan, and Irish Poteen. 
• The UK Government has published its latest statistics on the EU Settlement Scheme. Since its launch, there have been 7.7 million EUSS applications, 2% of these are in Northern Ireland.
• The Lords Justice and Home Affairs Committee has launched a call for evidence on Electronic Border Management. The committee’s inquiry will consider the impact of electronic travel authorisation schemes, and how this affects the Common Travel Area, among other matters. The deadline for submissions is 14 March.