Brexit & Beyond Newsletter

21 June 2022

Welcome to the 21 June 2022 Brexit & Beyond newsletter

The European Commission has launched legal action against the UK, following the introduction of its Northern Ireland Protocol Bill. Today’s newsletter also covers reactions to the Bill from business groups, politicians, and analysis from academics and lawyers. The UK’s Ambassador to the European Union gave evidence to the European Scrutiny Committee. The Lords Sub-Committee on the Protocol has published extensive written evidence in its inquiry on the Protocol.

EU legal action against the UK

On 15 June, following the UK’s introduction of the Northern Ireland Protocol Bill, the European Commission responded, setting out legal action. In remarks to the press, Commission Vice-President Maroš Šefčovič said, “there is no legal, nor political justification whatsoever for unilaterally changing an international agreement. Opening the door to unilaterally changing an international agreement is a breach of international law as well…this is illegal.” He said the UK’s Northern Ireland Protocol Bill is “extremely damaging to mutual trust and respect between the EU and the UK.” Šefčovič said it is “simply legally – and politically – inconceivable that the UK government decides unilaterally what kind of goods can enter our Single Market.”

European Commission Vice-President Maroš Šefčovič | Source: European Commission 2022

The Commission announced that it would resume previously paused infringement proceedings against the UK. It said that the UK Government has failed to implement the Protocol properly, which is “a clear breach of international law”. The Commission is taking the infringement launched on 15 March 2021 to its second stage. This legal action was in response to the UK unilaterally extending grace periods and was paused as talks between the UK and EU continued. If the UK Government does not reply to the Commission’s reasoned opinion within two months, the Commission will consider taking the UK to the Court of Justice of the EU. Additionally, the Commission launched two new infringement proceedings for the UK’s failure to carry out SPS controls at NI ports and for failing to provide the EU with trade data as required under the Protocol.

Šefčovič has given an extended interview to the Belfast Telegraph. On Sunday, Taoiseach Micheál Martin told the BBC that the UK Government’s legislation “represents unilateralism of the worst kind in terms of honouring and adhering to international agreements…we accept fully there are legitimate issues around the operation of the Protocol and we believe with serious, sustained negotiations between the European Union and United Kingdom government, those issues could be resolved.”

DUP leader Sir Jeffrey Donaldson has said they are “closely examining the details of the Bill but it is our view that if this bill becomes law, alongside regulations...It will, in our view, restore our place in the Union and allow a restoration of the equilibrium in Northern Ireland.” He did not commit to re-entering the NI Executive but said he had tasked a number of the party’s MLAs to engage with other parties and the Civil Service on a possible programme for government. UUP leader Doug Beattie said following a meeting with Maroš Šefčovič, “Saying that British goods coming into Northern Ireland will always be subject to checks, and that the EU is now responsible for public health in Northern Ireland is a step too far.” TUV leader Jim Allister said, “For many, the litmus test for the government’s Protocol Bill is whether it removes the Irish Sea border. Sadly, it does not.” Sinn Féin’s Michelle O’Neill said that the UK Government’s actions are “dangerous, they are a clear breach of international law” and called for the EU and UK to negotiate. Matthew O’Toole of the SDLP said, “Instead of pursuing a divisive, illegal and diplomacy shattering piece of legislation at Westminster, Liz Truss should reengage with Maroš Šefčovič’s team to build on the [EU’s] proposals published today. Unilateral action has never succeeded in Northern Ireland.” Sorcha Eastwood of the Alliance Party also called on the sides to negotiate, saying, “Even the threat of the legislation will undermine the region [Northern Ireland] as an investment location due to enhanced uncertainty.”

Proposals on SPS and customs

The Commission also published further details on its proposed solutions to ease movement of goods between GB and NI. It said it published the additional details on customs, and sanitary and phytosanitary measures “to show that solutions to the movement of goods between Great Britain and Northern Ireland can be found within the Protocol, and can be found quickly”. The Commission says the UK’s proposed trusted trader scheme will not work because it is based on traders’ self-compliance and would create significant risks for the EU single market. The Commission says the issue around medicines supply to NI is now sorted out. In evidence to the Lords Sub-Committee on the Protocol, TEVA, the lead supplier by volume of prescription medicines to the NHS, says that despite progress, issues around the centralised procedure remain: “for products subject to the EU’s CP route, there is a national licence for GB; and a CP licence for NI.” This means two licences and two separate packs for one product could be required, which is “unviable in the majority of cases” and, TEVA says, “The risk remains that we will be forced to discontinue some products in the future should this issue not be resolved.”

The Commission has published a Q&A on its proposals and its legal action. Regarding what happens if the UK’s Bill enters into force, the Commission says it “reserves the right to act at any time to protect the EU Single Market and to uphold respect for its agreements and international law. A unilateral solution violating an agreement will never be tolerated by the EU.”

UKG response

The UK Government responded saying, “It is disappointing that the EU has chosen to relaunch legal proceedings relating to the grace periods currently in place, which are vital to stop the problems caused by the Protocol from getting worse.”

EP response

The European Parliament UK Contact Group issued a statement on 14 June following a meeting with Vice-President Maroš Šefčovič. They are "deeply concerned with the UK’s unilateral action, which constitutes a serious and unacceptable breach of international law...We call upon the UK Government and UK Parliament not to adopt the proposed bill and to return to the discussion table to find practical, flexible and durable solutions within the legal framework of the Protocol.”

Reaction from business

The NI Business Brexit Working Group, which was formed in December 2019 and represents main business associations in NI, released a statement last week. It says they “have always been clear that the full implementation of obligations under the Protocol was going to present great challenges”, adding that the events of last week (when the UK introduced its legislation) are “a matter of deep regret”. The group raises concern about the dual regulatory regime set out by the UK Government but is positive about the green/red lanes or express lane proposals which the UK and EU have put forward respectively. The group argues that this can “only be progressed through a meaningful engagement process”. It was “particularly disappointed” in the EU’s response on parcels.

Analysis

The Institute for Government has published an explainer of the UK’s Northern Ireland Protocol Bill. QUB’s Professor Katy Hayward writes for the UK in a Changing Europe that, “The political and economic uncertainty faced by Northern Ireland and post-Brexit UK are only exacerbated by this move [to introduce the Bill] – especially if the EU uses the full extent of its retaliatory measures.” Roderick Crawford, senior research fellow at Policy Exchange, writes that EU member states “need to hold the Commission to account, reopen the mandate, and work with the UK to find a solution that respects the east-west realities of the Good Friday Agreement and Northern Ireland’s place in the UK.”

The UK Government’s legal position is that the Bill can be justified under the ‘doctrine of necessity’, whereby a state can disregard international obligations to safeguard an essential interest. It states, “the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where the Government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed.”

Jonathon Jones QC, the former head of the Government Legal Department, assesses the government’s legal position as “’weak’, perhaps more bluntly as ‘hopeless’”. Dr Ronan Cormacain of the Bingham Centre for the Rule of Law, writes for the UK Constitutional Law Association: “Given that the UK Government cited the [Good Friday Agreement] and pointed out its importance at the time of making the Protocol, it would be difficult for it to argue that the Protocol which it agreed actually broke the Northern Ireland Act 1998.”  Cormacain says he is unable to find a good reason for the UK to terminate the Protocol which is feasible within the terms of the Vienna Convention. Colin Murray, Reader in Public Law at Newcastle Law School writes on the Bill, “it is precisely because it is so far reaching, and so reliant on placing powers into the hands of ministers, that calls into question whether it can make it onto the statute book in its present form.”

UK Mission to the EU

The UK Ambassador to the European Union Lindsay Croisdale-Appleby | Source: UK Parliament

On 15 June, the Commons European Scrutiny Committee heard evidence from the UK’s Ambassador to the European Union Lindsay Croisdale-Appleby, including about the UK Mission to the EU’s work in relation to Northern Ireland. He told the Committee that he spends a significant part of his time on Northern Ireland, noting, “I think that reflects the complexity of managing that part of the relationship.” The Ambassador said that the Mission follows “extremely closely the evolution of goods regulation, which is clearly the relevant area, and those annexes to the Protocol”. The annexes of the Protocol set out the EU law which applies to Northern Ireland. He states that the Government is "concerned that we do not have as much insight and influence over that as would be healthy to ensure that appropriate rules were in place in Northern Ireland”. It was noted that the UK devolved administrations have offices in Brussels, and often have different priorities: for example, the Scottish Government has a policy of ‘keeping pace’ with new EU law. The Mission’s senior team meets the heads of the devolved Administration offices in Brussels weekly and the Ambassador said there is “a positive relationship”, for example working together on UK interests in participating in the Horizon programme, the EU’s collaborative research and innovation programme.

Other news

• The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland has published written evidence as part of its follow-up inquiry on the impact of the Protocol. Evidence has been submitted by businesses, NGOs, human rights and equality organisations, lobby groups, and academics.
• The UK Government has updated its Border Operating Model to reflect delays to the introduction of certain border controls on imports from the EU. The Commons Library has published an overview of the changes in trade rules between the UK and EU, including on customs, imports and exports. This applies to trade with Great Britain; different rules apply to Northern Ireland under the Protocol.
• The Commons European Scrutiny Committee has launched an inquiry into regulating after Brexit and is seeking written evidence by 22 July 2022. It will also consider how Common Frameworks, introduced by the Government to ensure a common UK approach is taken where powers have returned from the EU and which intersect with policy areas of devolved competence, impact the Government’s ability to regulate differently after Brexit.
• The Commons European Scrutiny Committee has published its third report of this parliamentary session. It considers EU proposals on fluorinated greenhouse gases and ozone-depleting substances, as well as changes to preferential rules of origin.
• The Senedd has published an article on ‘Rulemaking outside the EU’ and mechanisms for managing divergence in the UK.