Brexit Brief Newsletter

16 March 2021

Welcome to the 16 March 2021 newsletter

The EU has launched legal proceedings against the UK for its unilateral action on the operation of the Protocol on Ireland/Northern Ireland. The UK Government last week defended its action as “lawful”. The UK Government is delaying the introduction of new border controls on EU imports. Committees continue their scrutiny of Brexit-related matters, including on citizenship and passporting, and the operation of the Protocol.

Brussels: EU proceeds with legal action against UK

Following the UK Government’s decision to unilaterally extend grace periods for the Protocol on Ireland/Northern Ireland, the EU is taking legal action against the British Government. The EU has issued the UK with notice that it is triggering an infringement procedure for “breaches of substantive provisions of EU law concerning the movement of goods and pet travel”. The EU requests the UK to take “swift remedial actions” and the UK has one month to respond to the letter.

Vice President Maroš Šefčovič outlines the EU’s view | Source: Twitter

The EU has also sent a “political” letter to Lord Frost, Minister of State responsible for relations with the EU. The letter calls on the UK Government “to rectify and refrain from putting into practice” the statements and guidance issued at the start of the month. The EU says the UK has breached the ‘good faith’ provisions in the Withdrawal Agreement and calls on the UK to use the Joint Committee to reach a mutually agreed solution. Vice-President Maroš Šefčovič, the EU's co-chair of the Joint Committee, said: “Unilateral decisions and international law violations by the UK defeat its very purpose and undermine trust between us.”

The infringement procedure could potentially bring the UK to the European Court of Justice, and the ‘good faith’ breach could initiate arbitration processes under the Withdrawal Agreement’s dispute settlement mechanism. Irish MEP Seán Kelly points out that there is “a long way to go” before it reaches the ECJ and hopes the issue is resolved diplomatically in the meantime. This morning, the EU’s Ambassador to the UK João Vale de Almeida told the BBC that the EU is “ready to sit down at the table with the government to reach a common solution”.

At the European Parliament, leaders of political groups on Thursday again postponed setting a date for the Parliament’s vote on the EU-UK Trade and Cooperation Agreement. A Parliament spokesperson said, "Recent developments with the UK don't provide positive signs for us to agree on a date."

Westminster: UK Government defends actions

On Wednesday in the House of Commons, Shadow Secretary of State for Northern Ireland Louise Haigh asked the Secretary of State for Northern Ireland Brandon Lewis to make a statement on the Government’s unilateral action on the Protocol. Lewis stated that “action was needed in the immediate term to avoid any disruption to flows of critical goods”.

Shadow Secretary of State for Northern Ireland Louise Haigh addressing Brandon Lewis in the Commons | Source: UK Parliament

Haigh posited that the Government’s unilateral action sends “a clear message that the Government’s word [its commitment to make the Protocol work] cannot be trusted” and this “raises serious questions about whether the Government have a strategy at all to deal with the complex realities facing Northern Ireland.” Lewis pointed out that the measures have been welcomed by business in Northern Ireland.

Sir Jeffrey Donaldson (DUP) said he welcomed the action but said “we need a permanent solution”. Lewis said it is important to use the grace periods to get long-term solutions, reiterating this point when asked by DUP MP Carla Lockhart about the temporary measures to lift the ban on bulbs and vegetables with soil attached, saying “It is temporary…it is important we use the grace period to work with the EU to get permanent solutions to ensure that those kinds of products can continue to flow in the way that they should be able to”.

Colum Eastwood (SDLP) said Lewis had “sneaked out” the announcement. Given the international reaction, he asked if Lewis is “at all concerned that this Government’s reputation is in tatters across the world”. Lewis argued that “these are lawful actions”.

Lewis was challenged on the Prime Minister’s remarks in February, that the Protocol must not “place… barriers of any kind…down the Irish sea.” Lewis argued that the Government has “also always been very clear about building on the SPS checks, which, in one form or another, have been there since the 19th century. That is the reality of recognising the single epidemiological unit of the island of Ireland—we have always been up front and clear about that.”

PM visits Northern Ireland

Boris Johnson at a Covid-19 vaccination centre on his visit to Northern Ireland, pictured with First Minister Arlene Foster, Health Minister Robin Swann, and Secretary of State for NI Brandon Lewis. | Source: Andrew Parsons / No 10 Downing Street

Boris Johnson visited Northern Ireland on Friday, meeting with First Minister Arlene Foster, while deputy First Minister Michelle O’Neill decided not to take part. On the Protocol, Johnson said, “The most important thing about the protocol is that it should guarantee the peace process and the Good Friday Agreement." He added, "there's got to be an east-west consent... as well as a north-south consent so that's what we're doing."

UK Government delays new border controls on EU imports

The UK Government will delay fully implementation of controls and checks on EU imports. The Government on Thursday said it has “listened to businesses who have made a strong case that they need more time to prepare” and it has “given strong weight to the disruption which has been caused, and is still being caused, by Covid”.

• • Pre-notification requirements for Products of Animal Origin (POAO), certain animal by-products (ABP), and High Risk Food Not Of Animal Origin (HRFNAO) will not be required until 1 October 2021. Export Health Certificate requirements for POAO and certain ABP will come into force on the same date.
  • Customs import declarations will still be required, but the option to use the deferred declaration scheme, including submitting supplementary declarations up to six months after the goods have been imported, has been extended to 1 January 2022.
  • Safety and Security Declarations for imports will not be required until 1 January 2022.
  • Physical SPS checks for POAO, certain ABP, and HRFNAO will not be required until 1 January 2022. At that point they will take place at Border Control Posts.
  • Physical SPS checks on high risk plants will take place at Border Control Posts, rather than at the place of destination as now, from 1 January 2022.
  • Pre-notification requirements and documentary checks, including phytosanitary certificates will be required for low risk plants and plant products, and will be introduced from 1 January 2022.
  • From March 2022, checks at Border Control Posts will take place on live animals and low risk plants and plant products.

UK Government statement on the revised timeline for controls on EU imports | Source: UK Government

The initial timetable for the introduction of changes was laid out in the Border Operating Model.

House of Lords scrutinises Lord Frost

Lord Frost has only been in his new role for two weeks, but is already making his mark with the UK’s announcement to unilaterally extend the grace periods. On Wednesday he took questions in the House of Lords on the Protocol and grace periods, where he called the UK’s unilateral action “lawful and consistent with the progressive and good faith interpretation of the Northern Ireland protocol”. He went on to state that the Government would “consider any legal process launched by the EU very carefully; we will defend our position vigorously. The protocol is explicit in respecting the territorial integrity of the UK and we will ensure that is sustained.” Frost said he looked forward “to answering many more questions from this Dispatch Box about our approach to the relationship with the European Union”.

Lord Frost taking questions in the House of Lords | Source: UK Parliament

The House of Lords European Union Committee has written to Lord Frost on the operation of the Protocol on Ireland/Northern Ireland, including implementation issues, mitigations, UK-EU dialogue, engagement with NI stakeholders, and parliamentary scrutiny of the Protocol.

37. What steps will you take to strengthen and underpin bilateral dialogue with the EU, and in particular with Vice-President Šefčovič, in relation to the Protocol? Can you confirm reports that a UK-EU 'hotline' will be established
to deal with issues of difficulty as they arise? Will you seek to ensure that the Withdrawal Agreement Joint Committee, and the governance bodies that report to it, have a regular rhythm of meetings to ensure that they are able to anticipate problems before they occur, as well as react to them when they do?

Some of the questions posed by the Committee to Lord Frost | Source: UK Parliament

A second letter to Frost from the Committee relates to the UK Government’s unilateral announcement of temporary operational steps in relation to the Protocol, including the extension of the grace periods. Chair of the Committee Lord Kinnoull asks Frost, “why did the Government announce them as a set of unilateral actions on 3 March, rather than seeking to reach mutual agreement with the Commission in the Withdrawal Agreement Joint Committee?” Lord Kinnoull also asks what steps can be taken to rebuild trust and confidence between the EU and UK.

Northern Ireland Affairs Committee hears evidence on citizenship and passport processes in Northern Ireland

Northern Ireland Affairs Committee with witnesses from the Northern Ireland Human Rights Commission | Source: UK Parliament

On Wednesday, the Northern Ireland Affairs Committee heard evidence from the NI Human Rights Commission on citizenship and passport processes in Northern Ireland. Les Allamby, Chief Commissioner of the NIHRC noted that during the discussions on the Protocol’s dedicated mechanism, a commitment was made that those identifying as Irish would retain EU rights. Allamby said they pointed out “that did not seem consonant with the Belfast/Good Friday Agreement because we take it as implicit that how you identify, as British or Irish, or both, should not carry a specific advantage or adverse consequence.”

Allamby said the Common Travel Area between the UK and Ireland, in legal terms, is largely “built on sand”: much of the legal underpinnings came from freedom of movement and EU law.

Committee for the Executive Office meets with the Seanad Select Committee

On Wednesday, the Committee for the Executive Office and Seanad Select Committee on Brexit met to discuss EU Exit and its implications. Chair of the Executive Office Committee Colin McGrath said he believes the approach of the UK Government to unilaterally extend the grace periods was "a little bit clumsy". Lisa Chambers, who chairs the Seanad Select Committee, said the request to extend the grace periods was reasonable and that she understood the Irish Government were working behind the scenes to achieve this.

Doug Beattie, the only unionist MLA present at the meeting, asked how the Senead Committee would reflect unionist concerns in its report. Senator Chambers said, “I’m not living your experience, but I understand why your community is not happy with it [the NI Protocol].” Other topics discussed were the mutual recognition of qualifications, and cross-border healthcare.

Minister Poots and trade unions give evidence

Minister Poots, who has returned to his role as Minister for Agriculture, Environment and Rural Affairs, outlined his priorities to the Committee for Agriculture, Environment and Rural Affairs on Thursday. On the Protocol, Poots said up to 400 staff might be required if full checks are implemented, noting there is already a shortage of vets in the UK. He welcomed the extension of the grace period but said to some extent this “kicks the can down the road”. He said “we need people to be realistic about this”, arguing rigorous implementation of the Protocol is going to “wreck our economy”. Poots confirmed that SPS checks would not be required on loam products for cricket pitches.

The Committee also heard from trade unions NIPSA, UNITE, and GMB who represent port staff employed by Mid and East Antrim Council. The Committee is currently investigating the recent withdrawal of DAERA and Local Authority staff from ports. Alan Law of NIPSA said how they were referred to in Council statements on the matter “causes us concern” and said they had asked the Council to withdraw the “inaccurate remarks”. He said they never had any formal meeting with the Council at the time. The TUS provided a briefing paper to the Committee, including emails exchanged on the matter.

Other news

• The Special EU Programmes Body has launched a public consultation on the PEACE+ programme 2021-2027. It is asking for views on the draft content of the EU-funded scheme, worth around €1 billion, which is designed to support peace and prosperity across Northern Ireland and the border counties. The consultation is open until Wednesday 12 May 2021.
• The Irish Times reports that the US Senate is planning a resolution, which is likely to have bipartisan backing, to emphasise support for the Good Friday Agreement and efforts “to support peace on the island of Ireland”, noting that the Protocol was intended to do so. The resolution also states that future or amended US-UK trade agreements should take into account that the conditions of the GFA are met. Taoiseach Micheál Martin and US President Joe Biden will meet virtually tomorrow to mark St Patrick’s Day. Ireland’s Minister for Foreign Affairs Simon Coveney and Vice President of the European Commission Maroš Šefčovič on Wednesday met with the Friends of Ireland Caucus in the US Congress to discuss the latest Brexit developments. Coveney thanked the members of the Caucus for their engagement and “continued support for the Good Friday Agreement”.
• Ireland’s Minister for Further and Higher Education, Simon Harris has confirmed that students in Northern Ireland will be able to take part in the Erasmus programme through the Irish Government. Arrangements will be in place for the upcoming 2021-2022 academic year for students to temporarily register with Irish higher education institutions. All students in Northern Ireland will be able to participate, regardless of citizenship.
• The Ulster Unionist Party yesterday brought a Judicial Review against the Protocol on Ireland/Northern Ireland. Steve Aiken, leader of the party said “We have brought this application to avail of the protections afforded to the people of Northern Ireland by the Belfast Agreement and we hope and believe that the courts will find that the Northern Ireland Protocol and the 2020 Regulations are unlawful.”
• The European Commission has published details on how the UK will continue to participate in Horizon Europe, the EU’s research and innovation programme. The UK is expected to become an associate country in the programme, following the formal adoption of a Protocol which has been agreed in principle. As such the UK will have the same rights and obligations as other associate countries. UK institutions and businesses can take part in the first calls for proposals.
• Ireland yesterday joined the Schengen Information System, the EU’s system for sharing internal security and external border management information. Minister for Justice Naomi Long recently noted that the EU-UK Trade and Cooperation Agreement does not include continued access for the UK to the Schengen Information System. However, the TCA does “allow the UK to negotiate a similar arrangement with member states on a bilateral basis”.
• The UK Government has published guidance for local councils to adapt to new rules post-Brexit, covering areas such as participation of EU citizens in UK local elections, waste, public procurement, recruitment for schools, and data protection.

This Week at the Assembly

• Thursday 18 March 12.10 pm - Committee for Agriculture, Environment and Rural Affairs - Written Briefings from DAERA on EU Exit legislation, and EU Transition Update

Catch up with the Committees

• Monday 8 March, 2pm - Plenary - Question Time: The Executive Office
• Tuesday 9 March, 2pm - Plenary - Question Time: Economy
• Wednesday 10 March, 9.35 am - Committee for Economy - Briefing from NI Tourism Alliance (NITA) - Covid-19 response & EU Exit and NI Protocol; EU Exit legislation
• Wednesday 10 March, 2.05 pm - Committee for Finance - Public Procurement - Common Framework: Oral Briefing from Social Enterprise NI
• Wednesday 10 March, 2 pm - Committee for The Executive Office - UK Exit from EU - Seanad Select Committee on the Withdrawal of the UK from the EU
• Thursday 11 March, 9.30 am - Committee for Agriculture, Environment and Rural Affairs - Minister Lyons - Oral Evidence on DAERA Priorities for 2021/22; Withdrawal of DAERA and Local Authority Staff from Ports - Oral evidence from TUS; EU Transition Update - Written Briefing from DAERA