Brexit & Beyond newsletter

25 March 2024

Welcome to the 25 March 2024 Brexit & Beyond newsletter

The first applicability motion was debated in the Assembly on 19 March. The UK Government has published further legislation relating to the implementation of the Windsor Framework. The Windsor Framework Democratic Scrutiny Committee heard evidence on the potential impact of an EU ban on amalgam for dentistry in Northern Ireland. Minister Steve Baker has given evidence to the Lords Windsor Framework Sub-Committee.

We’ve published some new resources on the Windsor Framework on our website, including a summary of the UK and EU legislation required to implement the Windsor Framework, information and flowcharts on the Stormont Brake, applicability motions, and the work of the Democratic Scrutiny Committee, and a timeline of the key events and milestones for the Framework.

• Applicability motion tabled in the Assembly
• Implementation of ‘Safeguarding the Union’
• Windsor Framework Democratic Scrutiny Committee
• House of Lords Sub-Committee
• Other news

Applicability motion tabled in the Assembly

On Tuesday 19 March, the Assembly debated its first applicability motion, on an EU regulation on the protection of geographical indications for craft and industrial products (such as Murano glass and Donegal Tweed). Following the announcement of the Windsor Framework, the UK Government introduced a new process for how new laws can be added to the list of EU laws which apply in Northern Ireland under the Framework. The Windsor Framework (Democratic Scrutiny) Regulations 2024 sets out that the UK Government must not agree to add a new EU act to the Framework “unless the Assembly has indicated support for the application of that EU act by agreeing an applicability motion” with cross-community support. There are exceptions to this. You can read more about applicability motions and arrangements under the Windsor Framework on our new webpages. The Minister for the Economy states that the regulation relates to a reserved policy area and sits under the Intellectual Property Office (IPO).

DUP MLA Jonathan Buckley brought forward the motion, saying the vote was “a significant moment.” He said the DUP was voting against the motion as the new EU law “would mean a substantial expansion of EU intellectual property law in Northern Ireland covering craft and industrial goods. It would add 56 pages of EU law to the Windsor Framework, all under the oversight of the European Court of Justice (ECJ). Most significantly of all, it would create a new and unacceptable regulatory border between Northern Ireland and Great Britain”.

Philip McGuigan (Sinn Féin) asked, “Why would we in the Assembly deny businesses in the North the potential of unique protections that could help to sell and protect their products?” He called the debate “a distraction”. Sorcha Eastwood (Alliance) said, “The legislation offers protections to businesses in Northern Ireland. We already know that, often, the ask and the offer of tourism and our economy are intertwined. That is a good thing, and the danger of always automatically equating something that emanates from the EU with something that is bad is that it is wrong.”

Doug Beattie (UUP) stated, “Clearly, there are issues with the EU legislation on geographical indications, but what are they? Where was the scrutiny? There has been no scrutiny. Where were the experts in the subject matter to tell us the long-term effects of this? Where are the businesses telling us, "This is good" or "This is going to be bad"? What are the long-term implications of this EU regulation? We do not know, because there has been no scrutiny.”

Matthew O’Toole (SDLP and leader of the opposition) said, “Theoretically, there could be a future non-agriculture GI to protect the status of Irish linen in order to give it that premium mark of quality...If we are outside the scheme, that will limit the ability of Northern Ireland linen producers in the Irish Linen Guild (ILG) to be part of it.” He concluded, “This is a potential upside for our craft producers. They can participate in a GI scheme that can give them a leg-up in the largest single market in the world. The UK Government themselves say that there is a very limited downside. Why would we deny this to our craft producers?”

The motion was not agreed with cross-community support. Sinn Féin, the SDLP and the Alliance party voted for the motion. The DUP and UUP voted against the motion. The Government may agree to the law applying in Northern Ireland if there are “exceptional circumstances”, or the new EU law “would not create a new regulatory border between Great Britain and Northern Ireland.” QUB Professor David Phinnemore comments on last week’s vote and the decision the UK Government now faces.

Implementation of ‘Safeguarding the Union’

On 21 March, the Minister responsible for implementation of the Windsor Framework, Steve Baker made a written statement, announcing the laying of the Windsor Framework (Implementation) Regulations 2024. The regulations will give the UK Government powers to issue statutory guidance about the arrangements for implementation of the Framework and will confer powers on Government Ministers so they can do anything that a Northern Ireland Minister could do for the purpose of observing or implementing the relevant provisions of the Windsor Framework. Baker stated that this relates to commitments in the Safeguarding the Union Command Paper on removing physical checks on goods moving within the UK. The regulations will come into force on 12 April. Baker stated, “The Government will publish guidance and set out initial directions to fulfil its commitments swiftly thereafter”. The BBC reports on the development.

Baker confirmed the East-West Council will meet on 26 March “to discuss a range of proposals to boost investment and skills”. He outlined further steps to implement the Government’s commitments in the Command Paper.

Windsor Framework Democratic Scrutiny Committee

On 14 March, the Democratic Scrutiny Committee heard evidence from representatives of the British Dental Association (BDA) Northern Ireland on a proposed EU ban on dental amalgam. Provisional agreement was reached between the Council and Parliament on the proposal in February. Director of the BDA in NI, Tristen Kelso said the European Parliament’s vote to ban dental amalgam from 1 January 2025 “sent shock waves across the entire dental profession, nowhere more so than in Northern Ireland.” He told the Committee, “There are real concerns about the impact that the amended regulation could have on the ability of the most disadvantaged people in society to access dental services. The threat of an amalgam ban may well be the final straw for health service dentistry.”

Kelso explained that a ‘phase-down approach’ on dental amalgam is preferred: “We want to reach a point at which amalgam is no longer needed, but we are not there yet”. He said this would require “considerable reform and investment” and that combined with the fragile state of health service dentistry, the issue represents “a major risk”.

Ciara Gallagher, Chair of the Northern Ireland Dental Practice Committee, told the Committee, “We are not ready to get rid of [amalgam] yet, because we have not got a suitable alternative for a lot of cases.” She explained its advantages for nervous or elderly patients who cannot sit for too long for treatment (it is quicker to place amalgam fillings), those with special needs, and patients from low socio-economic groups (as it is reasonably economic). She called amalgam “a great workhorse material for dentistry”, adding that its removal in 10 or 18 months would mean there are “patients who will not have teeth that we could have otherwise have looked after.” She stated, “A derogation will not do, because we will not be ready in 18 months.”

The BDA NI raised concerns about the additional costs this change would create and whether the UK Government would provide additional funding. Gallagher explained, “If you had a steady dental service that was properly funded and dentists had faith in the planning for NHS dentistry, we could probably handle this issue a little bit better. Amalgam is a useful material, and it has an important place, but this would not be such a significant blow if our services were more stable. I will go back to the house-of-cards analogy: if this was on top of a solid house, the strain could be absorbed somewhere else.” Read the official report of the evidence from the BDA. The Democratic Scrutiny Committee has also received written evidence from the BDA NI, and correspondence from the World Alliance for Mercury Free Dentistry.

View from the Minister for Health

At the Health Committee later that day, Minister Robin Swann said work in the Department is “ongoing, should we unfortunately have to follow the EU time frame for the ban rather than the rest of the UK.” He told the Committee, “We are aware that the replacement that dentists will have to use will cost five times as much as amalgam.” He said the costs relating to general dental services and the prohibition of amalgam fillings from January 2025 has been estimated as £236,000, although figures relating to the costs of the Windsor Framework have been updated more recently.

Meetings with committees from the House of Lords and Commons

On 21 March, the Democratic Scrutiny Committee met with members of the Commons European Scrutiny Committee at Parliament Buildings. The Committee also held an online meeting with the House of Lords Windsor Framework Sub-Committee.

Members of the Commons European Scrutiny Committee and Windsor Framework Democratic Scrutiny Committee meeting at Parliament Buildings

At its meeting on 21 March, the Committee agreed to conduct an initial examination of a published new EU Act on the labelling of organic pet food, to inform a possible plenary debate on any applicability motion brought before the Assembly.

House of Lords Sub-Committee

On 13 March, Steve Baker, Minister of State in the Cabinet Office, responsible for the implementation of the Windsor Framework gave evidence to the Lords Windsor Framework Sub-Committee. Asked about the impact on NI’s competitiveness under the Windsor Framework (as goods are subject to EU standards, while GB goods are not), Baker said, the extent of EU law is the “minimum necessary to make goods and agri-food access possible to the European market in the context of an infrastructure-free border.” He added that NI’s position is “unparalleled anywhere”, with access to the EU and UK markets, as well as the UK’s free trade agreements. He said, “Northern Ireland is in a unique and unprecedented position. The compromise, of course, is to have some EU law in place…we want to see the maximum success and prosperity in Northern Ireland.”

Regarding commitments and new institutions set out in the Safeguarding the Union paper, Baker said, “I am very clear that I want to be open and transparent about what we are doing, so that everyone involved can be satisfied that we are in good faith fulfilling all dimensions of the Command Papers while simultaneously respecting all dimensions of the Belfast/Good Friday Agreement and all our international obligations”

The Committee heard that the East-West Council, which is to meet on 26 March in NI, will be attended by UK Government and NI Executive ministers.

Steve Baker, Minister of State in the Cabinet Office, giving evidence to the Sub-Committee on the Windsor Framework | Source: UK Parliament

Veterinary medicines

Baker outlined the establishment of a veterinary medicines working group. He said, “The EU needs to see that we are compliant with the obligations that we have, consistently, and that we are trying to solve the problems that we face within our own resources before we seek changes to the terms of the agreements we have struck.” He hopes the group will be “very clear and certain in what we need to ask the EU for, and will have worked through why we need to ask it of the EU, and why certain things are not within our power to resolve.” Baker explained that he is “determined to fix some of the negotiating errors that perhaps we had in the distant past…we should have the humility to respect the legitimate interests of our negotiating partners but the resolve to stand firm on our own interests and ask that they, too, are respected.”

Gavin Hall of the Veterinary Medicines Directorate told the committee that the Veterinary Medicines Regulations (press release, Statutory Instrument) have been laid in Parliament and should come into force at the end of May or start of June. He said this provides “a regulatory pathway that is very similar to the EU legislation” and should be “a good message to the Commission to say that we are serious about meeting the EU acquis in Northern Ireland and providing the framework for that to happen”. He said the number of veterinary medicines at risk of discontinuation to NI had reduced from the estimated 51% to approximately 35%.

Post-Brexit arrangements for NI

Baker remarked that the Framework, “in leaving in place some EU law, is a very hard compromise for unionists and Eurosceptics”. He said, “After eight years of this country tripping over with its shoelaces tied together, arguing with itself about what form Brexit should take and so on, this is the best we can do….I think this is a pretty good best…I am very aware that Northern Ireland has had a tough time through the Brexit process and I want to do my level best to make the most of the opportunity before us but, frankly, choosing from the available paths.”

The Committee has also published correspondence from Minister Baker regarding the implementation of the Windsor Framework. The Committee has received a response from Lord Cameron regarding its inquiry into regulatory divergence.

Other news

• The Government states that the construction of the Sanitary and Phytosanitary Inspection facilities in Northern Ireland could cost up to £192.3 million. It has also confirmed that SPS Inspection Facilities in NI will be completed by 1 July 2025, as required by the Windsor Framework.
• In response to a written question, the Minister for Agriculture has provided figures on the number of checks carried out under the Retail Movement Scheme.
• A statement from the 6 March meeting of the Interministerial Group on UK-EU Relations has been published. First Minister Michelle O’Neill and deputy First Minister Emma Little-Pengelly attended. Ministers discussed the upcoming meetings of the Partnership Council and Joint Committee. Terms of reference for the group were adopted and have been published.
• Dr Lisa Claire Whitten of QUB has published a three year review of Dynamic Regulatory Alignment and the Protocol on Ireland/Northern Ireland.
• The Office for the Internal Market (OIM) has published its annual report on the operation of the internal market for 2023 to 2024. It finds, “The emerging picture of the internal market is that regulatory difference is starting to build up, albeit slowly and with goods affected more than services, especially in food and drink”.
• Secretary of State for Business and Trade Kemi Badenoch gave evidence to the Commons European Scrutiny Committee on 13 March.
• The UK will host a meeting of the European Political Community on 18 July 2024 at Blenheim Palace.
• The European Commission has published a report on the implementation of the UK-EU Trade and Cooperation Agreement for 2023.
• Principal Economist at Ulster University Mark Magill reflects on the changing immigration trends for Northern Ireland.
• The NI Human Rights Commission and Equality Commission have published a briefing paper on the EU Pay Transparency Directive: The UK Government’s dynamic alignment obligations relating to Article 2 of the Windsor Framework. Their view is that the UK Government must transpose relevant provisions of the directive into NI law by 7 June 2026. Under Article 2, the UK Government committed to ensuring that certain rights, safeguards and equality of opportunity protections in Northern Ireland are not diminished as a result of Brexit.
• The UK in a Changing Europe has published a report on ‘Brexit and the state’. It finds Brexit has “placed new demands on the devolved governments” and that “put significant strain on relationships with the devolved governments.” The report comments that “the operation of the UK internal market, and in particular Northern Ireland’s place within it, risks being a continuing source of friction.”
• The Finance Interministerial Standing Committee met on 14 March. NI Minister of Finance Dr Caoimhe Archibald attended.
• The Government is consulting on a UK carbon border adjustment mechanism (CBAM) from 1 January 2027. A CBAM would apply to certain carbon intensive imports such aluminium and steel. The consultation closes on 13 June. The EU's CBAM could potentially apply in Northern Ireland, if agreed by the UK in the EU-UK Joint Committee (and subject to agreement of an applicability motion). The Centre for Inclusive Trade Policy has published a blog on the complexity of the EU CBAM in NI.
• The Comprehensive and Progressive Agreement for Trans-Pacific Partnership Act has received Royal Assent. The UK is set to join the trading bloc later this year.
• The Telegraph reports that hotel shampoo bottles could be banned in Northern Ireland under the Windsor Framework.