Brexit Brief Newsletter

24 May 2021

Welcome to the 24 May 2021 newsletter

Lord Frost, who is responsible for the UK’s relationship with the EU, and for overseeing the implementation of the Protocol on Ireland/Northern Ireland, gave evidence to two Committees in Westminster last week. The Northern Ireland Assembly debated access to medicines in NI, while the Committee for the Economy was updated on Brexit matters by officials from the Department for Economy. The Lords Sub-Committee on the Protocol held an evidence session with representatives from the NI business community.

Lord Frost gives evidence to Select Committees

David Frost, Minister of State at the Cabinet Office, appeared before the European Scrutiny Committee on Monday 17 May.

In relation to regulation, Frost was asked how it is possible for the UK to “do things differently” if Northern Ireland remains subject to EU regulation. Frost stated that, “Clearly, there is the risk of gaps opening up in regulation between Northern Ireland and the rest of the UK.” He cited the regulation of cancer drugs in NI, saying “That sort of thing is going to be a problem if we cannot find pragmatic ways through it that protect our UK national health service.”

Regarding resolving issues in the operation of the Protocol on Ireland/Northern Ireland, Frost said there “is a bit of momentum” in discussions with the European Commission but that “it is not hugely productive and we will have to see how far we can take it.” He said there is a precedent for an SPS equivalence agreement where there is no requirement to align: “We have consistently said that we would like to do something like that with the EU, but it has not wished to do so. That is the difficulty we face.” Frost said they are not keen on SPS alignment and “the reason is not ideological. To do trade agreements with other countries, you need to have control of your own agrifood and SPS rules.” He said processes on the GB-NI border “probably have a bigger chilling effect than we thought on GB businesses wanting to move goods to Northern Ireland.”

Frost was asked about his previous remark following his visit to NI where he said, “it is hard to see that the way the Protocol is currently operating can be sustainable for long” and whether he intended to propose a time limit to discussions. Frost said a formal time limit would not make sense but said, “We all know that the late spring and summer in Northern Ireland can sometimes be turbulent. There is significance in that. We have to take that reality into account.”

On the Joint Consultative Working Group (this is the forum where the EU will inform the UK about EU legislation which applies to Northern Ireland), an official said “We have been pressing to get this forum meeting regularly and to make sure it has working methods that enable us to get timely information about legislation and changes that are happening on the EU side, so that we can ensure that that is taken into account in understanding the potential impact for Northern Ireland.”

Lord Frost speaking to the European Affairs Committee | Source: UK Parliament

On Tuesday, Frost spoke to the Lords European Affairs Committee. Frost said there are 20-30 issues relating to the Protocol which are being discussed with the EU with “some limited progress”. These include SPS checks, medicines, and customs declarations. Lord Jay, who chairs the Lords Sub-Committee on the Protocol, asked if the House of Lords and Commons could obtain a copy of the roadmap. Frost said there are two versions of the document – one owned by the UK, and one by the EU, which are “evolving”. He said they would prefer to get further in the confidential negotiations before releasing the document.

NI Assembly debates ‘unfettered access’ to medicines

On Monday, the NI Assembly debated a private members’ motion on access to medicines and medical devices tabled by DUP MLAs Jonathan Buckley and Pam Cameron which “recalls that the barriers to trade in this area, imposed by the protocol on Ireland/Northern Ireland, are yet another reason why the protocol should be replaced… and calls on the Minister of Health to work with his Executive colleagues to resist strongly disruption to east-west trade for medicines and medical products in all circumstances.”

Robin Swann, Minister for Health, said he and the Department “are committed to maintaining the supply of medicines and medical devices in order to meet the needs of people in Northern Ireland,” adding, “Furthermore, I am committed to ensuring that Northern Ireland citizens continue to have the same access to new medicines and innovative treatments as citizens in the rest of the United Kingdom."

Minister for Health Robin Swann speaking to the NI Assembly | Source: NI Assembly

Swann went on to say that “there is no evidence yet to suggest that patients in Northern Ireland are unable to access medicines that they need or, indeed, any issues with the safety and efficacy of the medicines that are available. However, when the grace period ends, all suppliers will have to comply fully with the requirements of the Northern Ireland protocol, and my Department is aware that companies are planning for potential major changes to their supply arrangements from January 2022.” He said that, “The EU and the UK Government have central roles in finding the way forward. I have sympathy with the concerns expressed by Members.”

The motion was not passed, following a division.

Eleventh Common Frameworks report published

The UK Government has published its eleventh Common Frameworks report. Common Frameworks are being developed in policy areas which were previously governed by EU law and which intersect with devolved competence. By the 25 March 2021, eight Common Frameworks had reached provisional confirmation. The UK, Welsh and Scottish Governments have provisionally agreed a further 21 frameworks, as applicable. Northern Ireland Assembly Committees have been carrying out scrutiny of the first frameworks since late last year. 32 frameworks apply to Northern Ireland.

The report states that work is “well underway” to resolve issues arising from the interaction between the frameworks and the Protocol on Ireland/Northern Ireland. In this regard, the report states that “The operation of Common Frameworks will not have any adverse consequences for the implementation of the Protocol, and Common Frameworks contain the governance structures needed to manage divergence arising from the Protocol.”

Department for Economy update on EU Exit

On Wednesday, the Committee for the Economy was updated on EU Exit by officials at the Department for the Economy. They heard that some areas of the economy “have been adjusting better than others”. There are still outstanding issues on ‘at risk’ goods and in relation to the lack of preparedness of GB suppliers. Some issues are currently being discussed at EU-UK level, but some are under the remit of the British Government such as unfettered access NI-GB. Officials noted a need for greater communication to GB businesses but said there is a limited amount which can be done on their part.

John O’Dowd (Sinn Féin), asked about the EU settlement scheme, the deadline for which is 30 June 2021. The Committee heard that the latest figures from the Home Office suggest 88,600 NI-based applications to the scheme were made by the end of April. However, there is a risk this won’t cover everyone, and communications activity is planned over coming weeks to maximise awareness of the requirements. Officials may only know how big the problem is later on.

NI business community on the Protocol

The House of Lords Protocol on Ireland/Northern Ireland Sub-Committee heard from representatives of the business community in Northern Ireland. Aodhán Connolly, Director of the Northern Ireland Retail Consortium, said the situation has improved since the start of the year and the business community has been pragmatic and forthright, working with the EU and UK to find solutions. He said the extension of the grace periods were required but they have emphasised to Frost and Šefčovič that a long-term system is needed.

Stuart Anderson of CBI Northern Ireland pointed out that the ‘at risk’ test has limited exceptions and also applies to commercial processing in Northern Ireland which is posing challenges. He suggested that the Joint Committee could look at this issue. Seamus Leheny of Logistics UK said there is product substitution taking place where items are sourced from NI rather than GB. He said there still needs to be education for some EU countries who sometimes appear unsure about NI’s position in relation to the single market. Kelly emphasised that recognition of mutual qualifications via bilateral agreements is needed to allow goods to flow freely e.g. for construction workers and engineers.

Connolly said engagement and discussions with the UK and EU are welcome but now there should be delivery of tangible benefits, saying “we need to remove the politics from this”. Lord Jay, who chairs the Committee, said it was very helpful that the witnesses gave a clear analysis of the problems, but also suggested practical solutions, saying “that is comparatively rare and extremely helpful”. The Sub-Committee has published a call for evidence for interested parties to submit their views on the operation of the Protocol. The deadline for written submissions is Monday 14 June.

Other news

• NI Minister for Agriculture, Environment and Rural Affairs Edwin Poots has said he is “strongly opposed” to a potential UK-Australia trade deal with zero tariffs and zero quotas. He said this would present “a high level of risk to Northern Ireland and UK farmers”. However, the Protocol on Ireland/Northern Ireland means that Australian exports to NI are unlikely to qualify for zero tariff access to Northern Ireland.
• The US Senate has passed a resolution reaffirming its support for the Good Friday Agreement and the Protocol on Ireland/Northern Ireland. The Senate “expresses support for the Northern Ireland Protocol and its full implementation” and “will take into account, as relevant, conditions requiring that obligations under the Good Friday Agreement be met as the United States seeks to negotiate a mutually advantageous and comprehensive trade agreement between the United States and the United Kingdom.”
• The NI Human Rights Commission, Equality Commission for Northern Ireland, and the Irish Human Rights and Equality Commission held a virtual event ‘Rights after Brexit’ where they outlined their new responsibilities post-Brexit. In Article 2 of the Protocol on Ireland/Northern Ireland, the UK committed that its withdrawal from the EU will not result in any diminution of rights, safeguards and equality of opportunity in Northern Ireland, as set out in the Belfast/Good Friday Agreement.
• The North-South Ministerial Council has published its Annual Report 2020. Ministers have noted the role of the NSMC in relation to the Specialised Committee which has been established to consider matters related to the Protocol on Ireland/Northern Ireland and agreed “that officials should work to develop an appropriate mechanism” for referring proposals to the Specialised Committee.
• On Wednesday, the Committee for the Executive Office agreed to invite EU Vice-President Maroš Šefčovič and Lord Frost to attend a Committee meeting to give evidence.

This Week at the Assembly

• Tuesday 25 May, 2pm – Plenary - Question Time – Agriculture, Environment and Rural Affairs
• Wednesday 26 May, 2pm - Committee for the Executive Office - UK Exit from European Union - Oral evidence session with Junior Ministers; Special EU Programmes Body - Oral evidence on EU programmes
• Thursday 27 May, 10am – Committee for Agriculture, Environment and Rural Affairs - Written Briefing DAERA - EU Transition Update

Catch up with the Committees

• Monday 17 May, 12.30pm – Plenary - Private Members’ Motion: Unfettered Access to Medicines and Medical Devices; Question Time - Executive Office, Finance
• Tuesday 18 May, 2pm – Plenary - Question Time – Health
• Wednesday 19 May, 10.25am- Committee for The Economy - Departmental Briefing - Update on the UK exit from the European Union
• Wednesday 19 May, 3.35pm- Committee on Procedures - Legislative Consent Motions - Briefing by the Institute for Government
• Wednesday 19 May, 12.05pm – Committee for Agriculture, Environment and Rural Affairs - EU Exit legislation