Brexit & Beyond Newsletter

20 September 2021

Welcome to the 20 September 2021 Brexit & Beyond newsletter

Last week saw Lord Frost announce delays to the introduction of border controls on imports from the EU. Frost also outlined what the UK Government sees as the Brexit opportunities, including a review and reform of retained EU law. The NI Assembly Committee for Finance heard evidence from the Ulster Farmers’ Union and hauliers on the Protocol on Ireland/Northern Ireland. The Common Frameworks process isn’t expected to be complete by the end of this year: March 2022 is now the expected date for finalisation.

UK delays introduction of border controls

The UK Government has delayed the introduction of full border controls on goods being imported from the EU to GB. The UK will now introduce full customs declarations and controls, and pre-notification requirements for Sanitary and Phytosanitary (SPS) goods imported from the EU on 1 January 2022. New requirements for Export Health Certificates, Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts, and Safety and Security declarations on imports from the EU will be introduced on 1 July 2022. The new dates and controls are laid out in the UK Government’s updated timeline for the border operating model. Lord Frost said, “We want businesses to focus on their recovery from the pandemic rather than have to deal with new requirements at the border, which is why we’ve set out a pragmatic new timetable for introducing full border controls.”  

Lord Frost taking questions from peers on Thursday | Source: UK Parliament

Lord Frost was questioned on business preparedness for the introduction of new checks and the grace periods for import controls in the Lords on Thursday. Frost said, “We do not have to replicate everything that the European Union does. We intend to have a world-class border by 2025, with proportionate checks based on risk.”

Northern Ireland’s involvement in the governance of the Protocol

Last week Frost also took questions in the Lords on the impact of the operation of the Protocol on Ireland/Northern Ireland on power-sharing. He was asked about European Commission Vice-President Šefčovič’s comments on involving the people of Northern Ireland in discussions on the implementation of the Protocol. Frost said, “The issue of involving political opinion and institutions in Northern Ireland is for the UK Government…I think the EU should exercise caution in suggesting that Northern Ireland parties or political opinion should take part in the EU’s own institutions and decision-making procedures in this area: I do not think that would be consistent with the sort of arrangement we want in the future. The protocol is a treaty between two parties, the UK and the EU, and supporting arrangements need to be consistent with that.”

In response to a question on whether he regretted signing up to the Protocol without prior consultation of the political parties in Northern Ireland, Frost said, “There was at the time in 2019 quite a degree of consultation as we developed our negotiating position but, unfortunately, the outcome of that process and the positions taken by different parties are well known. We did the right thing for the country in putting in place an agreement that delivered a full and fair Brexit but, unfortunately, that agreement has not been implemented in the way we hoped it would, and that is why it needs to change.”

Sir Jeffrey Donaldson gave evidence to the Lords Constitution Committee on Wednesday. The session covered inter-governmental relations, the use of legislative consent motions and the Sewel Convention, the Internal Market Act, and devolution arrangements. On a mechanism for the UK Government to consult constituent parts of the UK before major decisions are made, Donaldson said, “It is not that the UK Government were not warned about the impact the protocol would have; they were. Indeed, our concerns were raised in all the debates around the EU withdrawal agreement and the protocol in terms of the impact creating an Irish Sea border would have on our economy and political stability...Yes, stronger consultation will be important, but—let us be clear—we are not talking here just about consultation. Article 1 of the Good Friday Agreement is very clear. It is more than consultation. Consent is the principle that has been set aside here.”

Sir Jeffrey Donaldson speaking to the Constitution Committee | Source: UK Parliament

Finance Committee hears from hauliers and farmers’ union

The Committee for Finance continued hearing evidence on the Protocol on Ireland/Northern Ireland in a session with the Road Haulage Association. Geoff Potter (Gray & Adams) called the Protocol “dysfunctional, bureaucratic, and it’s basically unsustainable in the longer term”. Mark Tait (Target Transport) pointed out that the cost of the additional declarations means it is harder to compete with larger companies, and argued that from groupage perspective, the model is not fit for purpose.

Peter Summerton (McCulla Ireland) said that as far as he is aware, no shipment has been turned back because it was deemed unsafe; it has been because of paperwork, adding, “We are being asked to do things GB-NI that the UK Government has had to further delay between the EU and the UK.”

Witnesses explained that the Protocol doesn’t protect movement of services and that hauliers are treated as GB hauliers: they are only allowed to make two cabotage movements - where a haulier registered in NI enters an EU jurisdiction and picks up and delivers in that jurisdiction - when they enter the Republic of Ireland. Summerton added that there is also a workforce problem: “companies and factories are struggling to satisfy their existing GB markets…never mind take advantage of some new market conditions.”

The Ulster Farmers’ Union also gave evidence to the Committee. David Brown outlined various problems for the pedigree sector, the lack of choice and variety of seeds for farmers in NI, and problems around rules of origin for the milk sector. James McCluggage said a veterinary agreement could remove 80% of checks, keep costs down and minimise trade friction. He recognised divergent opinions on such an agreement but said, “it would be helpful if both the Government and the EU recognised the unique starting point between both parties”. He said the definition of ‘at risk goods’ is “far too wide”.

 David Brown of the Ulster Farmers’ Union addressing the Committee for Finance | Source: NI Assembly

The impact of labour shortages was discussed and UFU is increasingly worried about this, especially on the processing side. McCluggage told the Committee that the President and Chief Executive of the UFU were meeting Home Secretary Priti Patel in London that day to raise the issue. In this regard, the Commons Environment, Food and Rural Affairs Committee has launched a new inquiry into labour shortages in the food and farming sector.

On the UK-Australia free trade agreement, McCluggage said they were extremely disappointed at how it was handled and shocked how much access the UK gave to Australia; he said food security and environmental issues are a major reason to be against this.

Lord Frost on Brexit opportunities

In the Lords on Thursday Lord Frost made a statement on Brexit opportunities. The Government plans to conduct a review of ‘retained EU law’ – the EU legislation which the UK placed on its own statute book in the European Union (Withdrawal) Act 2018. Frost said, “we intend to remove the special status of retained EU law…unless we do this, we risk giving undue precedence to laws derived from EU legislation over laws made properly by this Parliament.” He said this was part of “restoring this sovereign Parliament, and our courts, to their proper constitutional positions.”

The Government also plans to review the content of retained EU law: “our intention is eventually to amend, replace or repeal all retained EU law that is not right for the UK” and to begin to reform the legislation inherited on EU exit. As part of this, Frost mentioned a pro-growth, trusted data rights regime; reviews of GMO regulation, clinical trials frameworks, port services regulations, vehicle standards; and a national AI strategy. He added that the Government will put in place “more rigorous tests” before deciding to regulate: “we will consider the reintroduction of a one-in, two-out system”. According to the Regulatory Policy Committee, this means for each regulation that a department wants to introduce which imposes net costs on business, it would have to introduce a deregulatory measure to reduce net costs on business by twice as much. The Government intends to create a standing commission to take ideas from British citizens on repealing or improving legislation.

Frost was asked to confirm that under the Protocol many amendments to legislation which he proposes will not be possible in Northern Ireland and that divergence between GB and NI will increase. Frost answered, “This is obviously a very significant issue and why we put forward the proposals that we have in the Command Paper to try to deal with the problem. Our proposals for dual standards for goods circulating in Northern Ireland and a different way to manage the governance of the arrangements would, we hope, deal with the anomalies that exist, but, of course, they remain to be negotiated.”

The UK Government’s publications on regulatory reforms after Brexit can be read here.

Common Frameworks

George Eustice, Secretary of State for Environment, Food and Rural Affairs, gave evidence to the Common Frameworks Scrutiny Committee last Monday. Common Frameworks are being developed in policy areas which were previously governed by EU law and which intersect with devolved competence. Eustice pointed out that 80% of the regulations in his Department’s responsibility came from the EU, and in many areas policy is devolved. He said work was ongoing to work out how the UK Internal Market Act principles - for exemptions from mutual recognition and non-discrimination in certain circumstances - intersect with the frameworks.

On the frameworks’ interaction with the Protocol on Ireland/Northern Ireland, Eustice said, “in the realm of the frameworks, it would probably be of less significance, because our Command Paper does not envisage that the application of EU law in some of these fields would continue to operate…I suppose the fact that things are still slightly in flux on the Northern Ireland protocol complicates it to a certain degree.”

Eustice was asked about the role of the NI Executive in Common Frameworks in areas where the Protocol applies. He said, “The Northern Ireland Executive and officials in DAERA, in our case, have been absolutely plugged into the process…The fact that they are bound by some provisions coming from the EU under the protocol does not diminish the importance of their role within these frameworks...The kinds of conclusions that could come out of that might range from trying to lobby and persuade the EU to take a course that is closer to that of the UK, or finding ways, if they have to bring in certain changes in the EU, to ensure that that does not undermine their ability to trade with the UK. Obviously, we have provided for that through the UK internal market Act as well.”

On the timescale, Eustice thinks it is unlikely that the process will be concluded by the end of the year, and a more realistic timeframe for scrutiny and finalisation is March 2022.

EU Exit matters in the plenary

First Minister Paul Givan was taking questions in the Assembly on Monday 13 September. On the Protocol, Givan said, “In meetings with Maroš Šefcovic that junior Minister Kearney attended with me, I made it clear that I want both communities — our whole community — to be in the best of both worlds, where you have unfettered access to the European single market and to Great Britain's market. We do not have that, because of the barriers created for goods and services going from Great Britain to Northern Ireland.”

 First Minister Paul Givan taking questions in the Assembly | Source: NI Assembly

He was asked about whether the DUP will continue to attend the Withdrawal Agreement Specialised Committee and said, “I will need to come back to the Member with specific answers on what the DUP position is on the Specialised Committee.”

The Minister for Agriculture, Environment and Rural Affairs was taking questions on Tuesday 14 September. In a response to a question about the construction of permanent customs checkpoints at ports in NI, Minister Poots said that there is a proposal with the Department of Finance which will go to the Executive for consideration. Poots said he has received legal advice that the matter should be taken to the Executive and that it is not his decision to make.

Lords debate Committee reports on the Protocol

On Monday 13 September Lords debated the report from the European Union Committee 'The Protocol on Ireland/Northern Ireland' and the report from the European Affairs Committee’s Sub-Committee on the Protocol on Ireland/Northern Ireland. The Government is to respond to the latter report later this month. Lord Frost responded to the debate, saying he is “not a fan” of the suggestion for Northern Ireland to have some representation in the EU institutions while the Protocol arrangements apply to NI: “The UK is not a member state of the European Union; it is not represented in the EU institutions. It could not make sense for a part of the UK to be so represented. More to the point, I do not think it would help reassure those concerned about their identity and the status of Northern Ireland within the UK if we went down that road…it would pull Northern Ireland further into the EU’s orbit in a way that would exacerbate some of the difficulties rather than help resolve them.”

Frost said, “We are proposing a reordering of the governance arrangements of the protocol so that the consent, if it exists in Northern Ireland for such measures, can be more real, meaningful and based on genuine debate. There are a number of ways of achieving that if the EU wants to go down that road and that is a pre-eminently political question for people in Northern Ireland, as well as one for the UK Government. That is why we have set out the issue without proposing a specific way forward, but it is very much an issue for discussion.”

On ongoing negotiations with the EU, Frost said, “we have had a series of technical discussions with the EU and continue to do so. These have been quite helpful, but they are nevertheless talks about talks; they are not yet a process that gets to the fundamentals, and we need to get into that.”

The full debate can be read here.

Other news

• The Lords Protocol on Ireland/Northern Ireland Sub-Committee held an evidence session on Wednesday with the NI Human Rights Commission and NI Equality Commission, as part of its inquiry into Article 2 of the Protocol. Article 2 concerns the rights of individuals and states that the UK shall “ensure that no diminution of rights, safeguards or equality of opportunity” result from the UK’s departure from the EU. The Commissions briefed the Committee on their new responsibilities under Article 2 and their research on its interaction with immigration policy and health policy.
• The UK Government has stated that while the UK and EU are discussing the Northern Ireland Protocol, the temporary arrangements for parcels should continue to be used. HMRC has adopted a temporary approach to applying declaration requirements for the movement of goods in parcels. In almost all cases, goods sent to consumers will not require a customs declaration. Declarations will normally only be needed where the goods are prohibited or restricted, or are being sent from one business to another business where the value exceeds £135.
• The deadline for the consultation on engagement with business and civil society groups has been extended until 21 September. The Government is seeking views on how it should engage with groups on the implementation of the EU-UK Trade and Cooperation Agreement through the Domestic Advisory Group and the Civil Society Forum.
• The European Parliament has approved over €1 billion in subsidies for Ireland as part of the EU’s €5.34 billion Brexit Adjustment Reserve for countries impacted by Brexit.
• The Scottish Parliament’s Constitution, European, External Affairs and Culture Committee has launched an inquiry on the UK internal market. The Committee welcomes views on the relationship between the Protocol on Ireland/Northern Ireland and the operation of the UK internal market, and whether this poses challenges for Scotland.
• Politico reports that European Commission Vice President Maroš Šefčovič told MEPs in Strasbourg last Monday that he expects to present his new proposals on the Protocol on Ireland/Northern Ireland by mid-October.

This Week at the Assembly

• Monday 20 September, 2pm - Plenary - Question Time: Economy
• Monday 20 September, 6pm - Plenary - Legislative Consent Motion: Environment Bill
• Wednesday 22 September, 12.20pm - Committee for the Economy - EU Exit legislation
• Wednesday 22 September, 3.30pm - Committee for The Executive Office - UK Approach to the Ireland/Northern Ireland Protocol - Written briefing by Assembly Research
• Thursday 23 September, 2pm - Committee for Justice - EU Exit legislation; EU Exit and Justice Related Issues - Update

Catch up with the Committees

• Monday 13 September, 2pm - Plenary - Question Time: The Executive Office
• Tuesday 14 September, 2pm - Plenary - Question Time: Agriculture, Environment and Rural Affairs
• Wednesday 15 September, 2.10PM - Committee for Finance - Oral Evidence on the Northern Ireland Protocol: Road Haulage Association (RHA); Ulster Farmers’ Union
• Wednesday 15 September, 3.10PM - Committee on Procedures - Section 6A Consent Decisions
• Thursday 16 September, 2PM - Committee for Justice - EU Exit secondary legislation