Brexit & Beyond Newsletter 2021

1 November

Welcome to the 1 November 2021 Brexit & Beyond newsletter

The NI Assembly returns from its Halloween recess today. The EU and UK are in ongoing talks about the Protocol on Ireland/Northern Ireland. Lord Frost has been questioned by MPs and peers in Westminster. The Committee for the Executive Office met with the Seanad Brexit Committee. Queen’s University has published its latest polling on the Protocol.

EU-UK talks on the Protocol

European Commission Vice President Maroš Šefčovič met with UK Brexit Minister Lord Frost on Friday following a week of EU-UK negotiations on the Protocol. They will meet again this Friday. For the UK, “the gaps between [the EU and UK positions] remain substantial” and they want to see changes in other areas including subsidy policy, VAT, and governance arrangements. Šefčovič writes in the Telegraph today that he is “increasingly concerned that the UK Government will refuse to engage with [its proposals] and embark on a path of confrontation.”

Lord Frost under scrutiny

Lord Frost appeared before two Westminster EU Committees last week, and the previous week took questions from peers in the chamber. On Thursday 21 October he told the House of Lords that the Protocol “has not had the sensitive handling it needed.” On engagement with Ministers in Northern Ireland he said, “we discuss with elected politicians in Northern Ireland all the time what our position is, and we did that while preparing the Command Paper.”

It was pointed out to Frost that businesses are not highlighting problems with the European Court of Justice, which has become a red line for the UK Government. Frost said, “I certainly hear concern from business about the imposition of EU law without consent that the Court of Justice of the European Union is at the summit of.” Asked which of the EU’s proposals he is most excited about, Frost said, “they show that what previously it [the EU] has considered impossible—changing its own laws for the special circumstances of Northern Ireland—is now possible.”

Commons European Scrutiny Committee

Frost appeared before the Commons European Scrutiny Committee on 25 October. He said he would like to see an arbitration mechanism as in the EU-UK Trade and Cooperation Agreement to govern the Protocol in place of EU institutions and the ECJ. He was not explicit in ruling out any role for the court, saying there should be “No role for the Court as the final arbiter of disputes, as the summit of a system that imposes EU law—no role for the direct settlement of disputes between us.”

On the EU’s proposals, Frost said that “they don’t go far enough”. He said the talks have been constructive so far and that the European Commission and UK Government agree that the process shouldn’t run on for too long and should be settled “one way or another” this autumn.

Article 16

On what Article 16 safeguard measures could actually entail, Frost didn’t wish to speculate but said, “if we get to a point where Article 16 seems the only possible course of action, it has to be something that is capable of stabilising the situation and dealing with the political problem that exists with the protocol.” He suggested this might require legislation: “it is possible that amendments to our own domestic legal order might be necessary to provide total clarity for economic actors in Northern Ireland in those circumstances.” On a possible EU response to this action, Frost said, “I hope that the EU would think twice before taking such measures…It is not obvious that adding retaliation to that situation would necessarily help anybody.”

Sky news reports that a UK Government cabinet committee has met to discuss potential repercussions of triggering Article 16. Professor Catherine Barnard has produced a diagram with possible options for UK action and EU responses under Article 16.

Lords European Affairs Committee

The Lords European Affairs Committee also heard from Lord Frost on 26 October. Frost was reminded of Michael Gove’s analogy that the new EU-UK relationship is similar to an aeroplane journey with some turbulence when taking off, and was asked when the “gin and tonic and peanuts moment” might come. Frost said he thought this would come when “we find the right equilibrium on the Protocol”, pointing out mistrust generated here is impacting other areas of the relationship: “if we can put that on a better footing…we’ll be in a better place quite quickly and we can get the drinks out”.

Lord Frost addressing the European Affairs Committee | Source: UK Parliament

ECJ

Frost acknowledged that the UK can’t do anything about the ECJ’s interpretative powers of the court, which it had to acknowledge in the TCA, but said this then raises the question of where EU law does apply, and Frost says he would seek to reduce this. Former UKG special adviser Raoul Ruparel has commented on this idea of replicating EU law. Frost sees EU law as setting up divergence between GB and NI and argues it is “a simplification” to only talk about the ECJ rather than the whole system. European Commission President Ursula von der Leyen on Thursday said the role of the ECJ is not up for negotiation: “There’s one institution that is ruling on European law and it is the European Court of Justice”. The European Commission has written a letter to members states reaffirming that “the role of the Court of Justice under the Protocol is not up for discussion”, adding that the court is “intrinsically linked” to the integrity of the EU single market.

What’s changed?

It was pointed out that Frost negotiated the treaty and commended it to the house at the time. He was asked if he was embarrassed about trying to renegotiate it so quickly after it was approved: “not really, because circumstances have changed”, said Lord Frost. He said that there was “no longer cross community, cross-party consent in Northern Ireland for the Protocol”, pointing to statements from all unionist parties rejecting the Protocol. It was pointed out that at the time of signing, the Protocol was opposed by the DUP. In January 2020, the DUP, UUP, and TUV spoke against the protocol provisions during the Assembly debate where they declined to give consent to the EU Withdrawal Agreement Bill.

The sessions also covered the Government’s review of retained EU law (Frost says there should be a preliminary assessment of this by Christmas), Gibraltar, delays to UK accessing the Horizon programme, and delays to the UK’s introduction of border controls.

QUB report on the Protocol

Queen’s University Belfast has published its latest ‘Testing The Temperature’ poll on the Protocol, which was conducted between 8-11 October. This was before Lord Frost delivered his speech in Lisbon and before the EU published its proposals on the Protocol. The poll finds that 53% (compared to 46% in June) see the Protocol as an appropriate means for managing the effects of Brexit for Northern Ireland. The most pressing issues for respondents were supply of medicines and customs paperwork.

It finds high levels of distrust in those involved in managing the Protocol in Northern Ireland: 87% distrust the UK Government, 53% distrust the NI Executive, and 44% distrust the European Commission. Trust in business representatives remains higher at 54%. The poll also highlights levels of trust/distrust in NI political parties and how voters would like their MLAs to vote in the 2021 democratic consent vote (51% favour continuation of Articles 5-10 i.e. EU single market rules, 41% are against). 39% believe the UK would be justified in triggering Article 16, 53% don’t.

 Overall assessment of the current impact of the Protocol | Source: QUB

On democratic engagement, a majority of respondents would like to see Maroš Šefčovič and Lord Frost giving evidence to NI Assembly Committees regularly. 73% support regular UK-EU consultation on the Protocol with civil society and business representatives and 75% would like to see officials and experts from Northern Ireland attend relevant meetings of EU committees and agencies dealing with EU law applicable under the Protocol.

Experts’ assessment of the UK Command Paper

The Lords Sub-Committee on the Protocol on 27 October held a session with academics and experts on the UK Government’s Command Paper. Professor Ronan McCrea of UCL said if there is some stability, it might be easier to get some compromise: “the instability encourages people to dig in their heels”.

Jess Sargeant of the Institute for Government said the principle that goods remaining in NI should be treated differently to those going elsewhere (i.e. the EU single market) is good, however she said the real challenge is designing a system to distinguish between these, without additional paperwork burdens. She doesn’t think self-declaration will be robust enough for the EU and said the idea of a dual regulatory regime is “somewhat unexplored” but could potentially put NI businesses at risk of a competitive disadvantage.

McCrea said the Government’s objective are unclear, asking whether they want to make the Protocol work better, or do away with it: some of the UK’s proposals are deliverable but the way it is framed suggests the UK may not want to operate the Protocol at all. McCrea pointed out that “other people have red lines too” and highlighted the importance of the ECJ to the EU single market. McCrea said it appears that UK Government may think that the EU would not be willing to bring down the Trade and Cooperation Agreement if the Protocol is abrogated, adding “that is a dangerous bet to place”.

Peter Shirlow, University of Liverpool, argued that what is missing from the proposals is the inclusion of civic society and local political actors in NI. He suggested that the NI Assembly could create a civic society forum for any future consultation, which wouldn’t be legally constituted but could be influential. He said this could bring practical thinking and knowledge and should feature in future resolution of issues.

Engagement with Seanad Committee

On Wednesday 20 October, the NI Assembly Committee for the Executive Office Seanad met with the Seanad Special Select Committee on the Withdrawal of the UK from the EU. The Seanad Committee is due to publish its report in December, and its interim report, published in July, can be read here.

Senator Lisa Chambers (Fianna Fáil), Chair of the Seanad Committee, said she thinks that “the Irish Government is doing its best to advocate for all citizens on this island” in relation to the Protocol but said, “I don't see a solution on the table as of yet in terms of how we do provide that democratic input” and asked for the Committee’s views on solutions. Senator Niall Ó Donnghaile (Sinn Féin) said his party’s preferred option would have been the retention of NI’s European Parliament seats and said, “we also need the European institutions to understand that there is that democratic deficit as well and there may need to look at bespoke arrangements.”

Members of the committees after the meeting | Source: NI Assembly

Chambers said she thought that there was “a considerable degree of movement” in the European Commission’s position and said, “it is a very bespoke offering that that has been put on the table”. Chair of the Committee for the Executive Office Sinead McLaughlin(SDLP) said, “It's no surprise that politically this is a very, very difficult topic” but said the business community have “really stepped up to the mark” to try and find solutions.

On the democratic deficit, John Stewart (UUP) said he has “never heard the Taoiseach or Tánaiste speak for unionism” and said there are great concerns among the unionist people here over “how the protocol has been imposed without any democratic input”. Diane Dodds (DUP) said she gets the feeling that “many politicians from Dublin and the wider Republic of Ireland either ignore or don’t understand [the unionist perspective]”.

Chambers said she fully accepts that “no matter how much tweaking we do with it, the very fact that it [the Protocol] exists will always be an issue for some people.” She appreciated the different viewpoints offered, saying “there's no point in being in an echo chamber - that's not going to provide any way forward or pathway forward” and invited the Committee to Leinster House. Other issues discussed during the session were mutual recognition of professional qualifications, data adequacy, citizens’ rights, the Erasmus and Turing schemes, and the cross-border healthcare directive.

Post-Brexit medicines regulation for NI

On 20 October, the Lords Protocol on Ireland/Northern Ireland Sub-Committee held a session on the impact of the Protocol on the provision of medicines to Northern Ireland, with witnesses from the medicines and pharmaceutical sectors. A grace period is currently in place, but under the Protocol, medicines in Northern Ireland would be regulated through the European Medicines Agency (EMA), while in the rest of the UK medicines are regulated by the Medicines and Healthcare products Regulatory Agency (MHRA).

Paul Williams of pharmaceutical company Teva UK said under the current protocol, and after the ‘standstill’ period, one marketing authorisation would be required for GB, and one for Northern Ireland. Williams said they are “very concerned” about the viability of generic medicines - the new rules could mean additional costs. Williams said he had previously written to the Secretary of State to inform him that 250 of its 610 medicines could be at risk of withdrawal from NI.

Michelle Riddalls of PAGB (the UK trade association for over-the-counter medicines) and Williams welcomed the grace periods. Williams said they had put their plans to discontinue products on hold, but emphasised, “it only kicks the can down the road…the pharmaceutical industry works on long time horizons, lots of things take years to do”. Martin Sawer of the Healthcare Distribution Association pointed out that it was not particularly good news for business because of the uncertainty and could eventually mean less competition in supplying NI.

EU proposals

Riddalls welcomed the EU proposals, saying the non-paper “goes some way to address our concerns for over-the-counter medicines” but said issues remain, for example for re-releasing products, and wholesaler dealers licence. Williams said the non-paper has a lot to commend for existing treatments: there would be one authorisation for whole of the UK which is a “big concession by the EU…it exhibited a willingness to move”.  He highlighted that regulation is the big issue, which is a “technical rather than political” matter. Williams noted the risks of any unilateral action by the UK and potential EU responses. Witnesses agreed that a negotiated outcome was needed.

The Seanad Special Select Committee on Brexit also recently held a session on medicines supply for Ireland post-Brexit.

Article 2

The Lords Sub-Committee on the Protocol has written to NI Secretary of State Brandon Lewis outlining its concerns about the implementation of Article 2 on the Protocol on Ireland/Northern Ireland, which guarantees that human rights and equality provisions will not be lowered in Northern Ireland as a result of Brexit. The Committee has urged the Government “to commit to upholding the Article 2 provisions and the dedicated mechanism for their implementation, whatever happens with the Protocol”. The Committee recently held an evidence session with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland on the subject. The Commissions have also submitted written evidence to the Commons European Scrutiny Committee on the Trade and Co-operation Agreement (TCA). They say that “policy and legislative developments in the UK or the EU, which engage human rights and equality commitments under either treaty, will need to be shared at an early stage with the Commissions and all relevant stakeholders and bodies”.

The Committee for the Executive Office has enquired about a proposed European Directive on pay transparency and whether this falls under the Protocol. The Department for Communities says “it is a matter for the European Union and the Whitehall Government, through the Joint Committee, to decide whether this particular Directive falls under the scope of Article 2”.

Other news

• Tensions between the UK and France over post-Brexit fishing rights have increased: Politico has the latest on the row overshadowing the COP26 summit.
• The Policy Exchange think tank has published a paper on the origins of the current crisis around the Protocol on Ireland/Northern Ireland, with a foreword by Lord Frost.
• The UK Government has provided some more details about the Shared Prosperity Fund, which it says “will at a minimum match the size of EU Funds in all nations, each year”.
• The Special EU Programmes Body, which oversees the PEACE PLUS programme has published its Public Consultation response report.
• The UK Government has published information from HMRC on moving home from GB to Northern Ireland.
• The UK Government has published its latest quarterly report on intergovernmental relations covering the period March – June 2021. It outlines meetings between the UK Government and NI Executive Ministers, including on health and agriculture matters relating to Brexit; work on the Turing scheme to replace the EU’s Erasmus student exchange programme; and engagement with devolved ministers on funding.
• The Irish Central Border Area Network has published a report entitled ‘The Border After Brexit: Experiences of Local Communities in the Central Border Region of Ireland / Northern Ireland’. It finds that “The greatest concerns centre upon political stability in Northern Ireland and on cross-border cooperation.”
• The Commons European Scrutiny Committee has published a report ‘Brexit divorce bill and UK participation in EU programmes: how much and who pays?’. It notes that there are “significant discrepancies in the estimates of the total cost of the Brexit settlement made by the Treasury, the Office for Budget Responsibility and the European Commission”. On UK participation in Horizon Europe, the EU’s research and space programme, the report says delays in formalising UK’s participation “is impeding participation by British organisations in projects and procurement exercises funded from these EU programmes.”

This Week at the Assembly

• Wednesday 3 November, 2pm - Committee for The Executive Office - Head of Northern Ireland Civil Service - Oral Briefing
• Thursday 4 November, 10.05am - Committee for Agriculture, Environment and Rural Affairs - EU Exit legislation – written briefing
• Thursday 4 November, 11.35am - Committee for Health - EU Exit legislation

Catch up with Assembly Business

The Assembly was in recess last week.

• Monday 18 October, 12.30pm – Plenary – Matter of the Day: Protocol on Ireland/Northern Ireland: EU Commission Proposal; Private Members’ Motion - Interparliamentary Dialogue
• Wednesday 20 October, 10am - Committee for Infrastructure - EU Exit legislation
• Wednesday 20 October, 2pm - Committee for The Executive Office - Engagement with the Seanad Special Select Committee on the Withdrawal of the UK from the EU
• Thursday 21 October, 10.10am - Committee for Communities - EU Exit legislation
• Thursday 21 October, 11.15am - Committee for Agriculture, Environment and Rural Affairs - EU Exit legislation
• Thursday 21 October, 2.05pm - Committee for Justice - EU Exit and Justice Related Issues – Update