Brexit & Beyond Newsletter

29 November 2021

Welcome to the 29 November 2021 Brexit & Beyond newsletter

As EU-UK talks on the Protocol rumble on, European Commission Vice-President Maroš Šefčovič will appear before the Committee for the Executive Office on Wednesday. The Committee heard evidence on Brexit and related matters from officials at The Executive Office last week. UK Parliamentary committees have held sessions on the UK border post-Brexit, and the road freight supply chain.

EU-UK talks

UK Brexit Minister Lord Frost and European Commission Vice-President Maroš Šefčovič met in London on Friday, after a sixth week of negotiations on the Protocol on Ireland/Northern Ireland, which focused on the supply of medicines. Following the meeting, Šefčovič said, “A decisive push is needed to ensure predictability.” Lord Frost said, “We would still like to find a negotiated solution. But the gap between our positions is still significant and we are ready to use Article 16 to protect the Belfast (Good Friday) Agreement if other solutions cannot be found.” Earlier last week, Šefčovič told Politico that the talks will probably continue into next year: “Looking at how far we progressed over the last four weeks, the level of detail our UK partners want to discuss, I know that we will probably not be able to resolve everything before the end of the year."

Lord Frost gave a speech to the Centre for Policy Studies think tank on 22 November, where he said that the Protocol is his “top priority…we must not forget that our most urgent and pressing problem, an issue of the highest national interest, is to make sure we can trade freely within our own country.” His speech focused on his vision for the UK’s trade policy and divergence post-Brexit.

The two chief negotiators will meet again this Friday. On Wednesday Vice-President Šefčovič will appear virtually before the NI Assembly’s Committee for The Executive Office. You can watch the session live on the NI Assembly TV website.

The ongoing EU-UK negotiations were discussed at a meeting of the EU General Affairs Council on 23 November. Šefčovič updated ministers from the 27 EU member states on the latest developments, and ministers reiterated their support to the European Commission's approach. The EU highlighted “the need to shift into a result-oriented mode and to deliver on the issues raised by Northern Irish stakeholders. It is essential that the recent change in tone now leads to joint tangible solutions in the framework of the Protocol.”

In a written question from Lord Empey (UUP), Lord Frost was asked for the Government’s assessment of the impact of triggering Article 16 on the remainder of the Protocol. Lord Frost responded, “Article 16 is a safeguard provision for addressing serious economic, societal and environmental difficulties. It is part of the Northern Ireland Protocol. Triggering it does not affect the standing of the Protocol as a whole.”

Committee for the Executive Office hears evidence from officials

On Wednesday 24 November, the Committee for the Executive Office heard evidence from officials at The Executive Office(TEO) on Brexit and related matters. Tom Reid, Deputy Secretary, International Relations and EU Exit, said that, in light of the UK Government’s position on Article 16, TEO officials are “monitoring the progress of [EU-UK] discussions to understand what might be required in the event that we need to implement contingency planning arrangements”. The Committee was informed that the Joint Consultative Working Group has continued to meet monthly, and last met on 15 November, where discussions covered the modalities for the exchange of information between the EU and UK. The NI civil service has engaged with Whitehall regarding the Specialised Committees under the EU-UK Trade and Cooperation Agreement. Most of these committees have met and the Partnership Council is expected to meet in December.

EU-UK Trade and Cooperation Agreement governance structure

Officials confirmed that the Domestic Advisory Group and Civil Society Forum, which will provide for the involvement of civil society in the governance of the EU-UK Trade and Cooperation Agreement, are expected to first meet at the end of this year or early next year. The UK Government re-opened expressions of interest for membership of the groups last week and the deadline for applications is midnight tonight.

On Common Frameworks, which are being developed to ensure a common approach is taken in policy areas which intersect with devolved competence and which were previously governed by EU law, officials told the Committee that on 10 November, ministers from The Executive Office attended a meeting with the UK, Scottish and Welsh Governments, and this has cleared the path for the publication of Frameworks by 9 December. The First Minister and deputy First Minister are considering the reclassification of the Equal Treatment Common Framework: the UK Government’s assessment is that no framework is required. The Commons Women and Equalities Committee has received a letter from the Minister for Levelling Up Communities and Equalities Kemi Badenoch MP on this matter.

The Committee Chair Sinéad McLaughlin asked officials about the loss of EU funding in comparison to replacement funding from the UK Government. Reid said, “To date, those [funds such as the Levelling Up Fund and Community Renewal Fund] haven’t come close to replacing the monies that were lost.”

On EU-UK discussions, Reid said that both parties are “cognisant of the need for better dialogue and better engagement with Northern Ireland” and said this point has been made repeatedly by the First Minister and deputy First Minister in their engagement with Lord Frost and Vice-President Šefčovič.

On state aid rules and divergence, Reid said the challenge is that where there are legislative or regulatory changes at EU or UK level, “there needs to be a process there that considers the implications of those on Northern Ireland, including on competitiveness.” He said they are pursing this with colleagues in Whitehall and have raised this with the Office for the Internal Market (OIM). The OIM assesses whether the UK Internal Market is operating effectively. Reid added that probably the biggest challenge is the “unintended consequences” and how to manage divergence, which is a “key strand” of their work. He said, “the complexity of this is huge because it almost applies potentially in every area of policy and legislation.”

Asked about the added costs for companies in GB, for example, who may have to relabel products to service the NI market, Reid said it is “essential” that the EU and UK talk to local suppliers in NI “so we understand the practical and cost implications.” He added that the real danger is that without such engagement with local businesses and stakeholders, “we end up with the type of unintended consequences which could make supplying Northern Ireland from GB commercially non-viable in certain circumstances”.

EU Exit and the UK border

Last week, the Commons Public Accounts Committee held two sessions on Brexit and the UK border. On Monday 22 November, Chief Executive of the British Ports Association Richard Ballantyne was asked about the impact of the Protocol on Ireland/Northern Ireland on GB ports. The Chair pointed to data from the Chief Executive of Seatruck Ferries on Irish Sea routes, which shows increases in traffic at Cairnryan and Liverpool and big drops in Fishguard and Holyhead. Traffic has increased through Larne, Belfast and Warrenpoint ports. Ballantyne explained: “Hauliers, the logistics industry and the freight industry will look for the path of least resistance in terms of border processes, requirements and so on. Rightly or wrongly, it is perceived that it is easier to get things through from GB to Northern Irish ports.” He added that “not all the controls and requirements have been introduced, as I understand it, from GB to NI. Equally, goods coming back, from NI to GB, are not subject to the same controls.”

Ballantyne has asked the Government for an equivalent of the Border Operating Model (which explains how the UK border with the EU works) for Northern Ireland – Great Britain traffic. He said: “we have the Northern Ireland protocol and Command Paper, which describe some of the processes, but a border operating model itself, to have something definitive for Northern Ireland, would be very helpful…you have to have the clear guidance in existence first and foremost so that people like ourselves, and others who will take an interest, can have something to access.”

On Wednesday 24 November, Alex Chisholm, Permanent Secretary at the Cabinet Office, was asked about ongoing discussions on the Protocol. He said, “They have been very energetic. Lots of effort has been put in on both sides. There has been positivity and creativity, which is good.”

Road freight supply chain

The Commons Transport Committee on Wednesday 24 November heard evidence from the logistics and haulage industry. Elisabeth de Jong of Logistics UK told the Committee that they have asked for Article 16 not to be triggered, “because we want negotiation and the operational procedures to work. We are absolutely focused on the practicalities.” Duncan Buchanan of the Road Haulage Association likened the Protocol on Ireland/Northern Ireland to a new version of Windows: “When you have a new version of Windows, what do you find when you actually open the tin and everyone plays with it? You find that there are bugs and things that do not quite work.” He said that people need to have a mind-set of trying to improve things: “Whether this is an addendum to the protocol, or how you do it, is a political question. We are road hauliers. We just want to get on and deliver things.”

 Duncan Buchanan of the Road Haulage Association | Source: UK Parliament

CEO of Cold Chain Federation Shane Brennan said, “We want to drive lorries and not solve sovereignty debates.” He said for the food industry, the restructuring of trade flows has largely happened and now it’s about “trying to rebuild a cross-border flow from mainland UK into Northern Ireland.” For the food industry, the key issues are “the hugely disruptive requirement for export health certificates, the requirements for vets and the requirement for pre-notifications and for 24-hour notifications to go across Government.” He said such issues relate to alignment on regulatory food rules, rather than the Protocol.

Other news

• The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland has recently published written evidence, including from the fishing industry, academics, and pharmaceutical companies. The submissions can be read here.
• The House of Lords Commission has published a report backing a proposal that the House be asked to agree to the creation of the EU-UK Parliamentary Partnership Assembly(PPA) under the EU-UK Trade and Cooperation Agreement. The UK delegation would have 35 members: 21 MPs and 14 peers. The report states that, based on informal discussions, the full PPA is likely to meet twice a year, and “it is anticipated that observers from the devolved legislatures will also be invited to attend, subject to the agreement of the European Parliament.” Devolved legislatures have been pushing for a role in the PPA, and speaking rights on discussions relevant to devolved matters. The report suggests the first meeting of the PPA could be held in early 2022.
• The first joint board meeting of the Equality Commission for Northern Ireland (ECNI), the Northern Ireland Human Rights Commission (NIHRC) and the Irish Human Rights and Equality Commission took place on 23 November. The three Commissions work on equality and human rights issues with an all-island dimension following Brexit. The ECNI and NIHRC have been given additional responsibilities to oversee the Article 2 commitment of the Protocol on Ireland/Northern Ireland, whereby the UK Government commits to ensuring there is “no diminution of rights, safeguards or equality of opportunity” as a result of Brexit.
• The potential implications for Scotland of on-going discussions between the UK Government and the European Union on the Protocol were raised in the Scottish Parliament on 25 November. Cabinet Secretary for the Constitution, External Affairs and Culture Angus Robertson said that Scottish ministers are “concerned about the continuing lack of progress in the talks”. He said they have “repeatedly urged the UK Government to approach the on-going discussions with the EU seriously and constructively and to meaningfully include devolved Governments in that process.” He went on to say that if the UK Government were to trigger Article 16, “that would have profound and deeply damaging consequences for every part of the UK and could result in a disastrous trade dispute with the EU.”
• The Research team at the Senedd has published a piece on the Protocol and Article 16, including how this may affect Wales. The House of Commons Library has also published a research briefing on the Protocol and Article 16, which considers why it might be triggered, what the other party can do to respond if it is.
• The draft coalition agreement for a new German government (to be made up of the SPD, Greens and FDP) includes a reference to the Protocol on Ireland/Northern Ireland: “We insist on full compliance with the agreements, in particular with regard to the Northern Ireland Protocol and the Good Friday Agreement.” It also expresses support for a common EU policy towards the UK.

This Week at the Assembly

• Monday 29 November, 2pm – Plenary - Question Time: The Executive Office; Agriculture, Environment and Rural Affairs
• Wednesday 1 December, 10am - Committee for Infrastructure - EU Exit legislation
• Wednesday 1 December, 3.15pm - Committee on Procedures - Legislative Consent Motions - Briefing by RaISe; Section 6A Consent Decisions - Update
• Wednesday 1 December, 4.30pm - Committee for The Executive Office - UK Exit from EU - Oral Briefing from European Commission Vice President Maroš Šefčovič

Catch up with Assembly Business

• Wednesday 24 November, 12.35pm - Committee for the Economy - Departmental Written Briefing - Outcome of the European Social Fund third Call
• Wednesday 24 November, 2pm - Committee for The Executive Office - UK Exit from EU - Update from NI Assembly EU Affairs Manager; UK Exit from EU - Oral Briefing from Junior Ministers
• Thursday 25 November, 10.30am - Committee for Agriculture, Environment and Rural Affairs - ESR Report: Written Briefing - DAERA - Direct Payment to Farmers Regulations; Written Briefing from DAERA - UK-Wide SI: The Sea Fishing Amendment (No.2) Regulations 2021