Brexit & Beyond Newsletter

28 June 2022

Welcome to the 28 June 2022 Brexit & Beyond newsletter

The Northern Ireland Protocol Bill was debated in the House of Commons yesterday. Minister Cleverly gave evidence to the Lords European Affairs Committee on the Protocol and other EU-UK matters. The UK Government has published an interactive dashboard for its Review of Retained EU law.

Northern Ireland Protocol Bill – second reading

The second reading of the Northern Ireland Protocol Bill took place yesterday, 27 June, lasting almost 6 hours until a vote at 10pm. The Bill passed the second reading by 295 votes to 221. More than 70 Conservative MPs either abstained or were excused from voting. This was the first opportunity MPs had to debate the legislation, which would disapply core parts of the Protocol. The Bill would give Ministers powers to establish green and red channels for goods, and a dual regulatory regime whereby businesses could meet either UK or EU standards. The Bill would allow for UK-wide policies on subsidy control and VAT and remove the role of the Court of Justice of the European Union in overseeing the Protocol’s implementation.

Presenting the Bill, Foreign Secretary Liz Truss said the Bill is “both legal and necessary”. She declared, “Once the legislation is enacted, we can draw a line under the issue and unleash the full potential of our relationship with the EU.”

Former Prime Minister Theresa May, who negotiated a previous version of the Protocol, was highly critical of the Bill, saying, “this Bill is not in my view legal in international law, it will not achieve its aims and it will diminish the standing of the United Kingdom in the eyes of the world.” Conservative Chair of the Commons Northern Ireland Affairs Committee Simon Hoare said, “This is not a well thought-out Bill, it is not a good Bill and it is not a constitutional Bill...The Protocol and trading arrangements do not interrupt or change the constitutional integrity of the UK, so I do not agree with those who try to position this as a constitutional Bill.” He added, “The arguments in support of it are flimsy at best and irrational at worst.”

The Foreign Secretary was asked what agreement she had secured that the DUP will return to power sharing on completion of the Bill or sooner. Truss said, “It is our expectation that the passage of the Bill will result in the institutions being re-established.”

DUP MP Sir Jeffrey Donaldson told the Commons, “If enacted, the Bill will restore confidence in Northern Ireland, will restore the consensus essential to operate power sharing, and will therefore give back to the elected representatives in Northern Ireland the power to take the decisions that they have not been able to take.” He outlined his opposition to the Protocol, saying, “In putting in place the Irish sea border, the protocol has broken article 6 and made me a second-class citizen in my own country, because I do not have the right to trade freely with the rest of the United Kingdom. I am simply asking for my rights as a British citizen.” Sir Jeffrey was asked for clarity about when his party would return to power sharing: when the Bill has passed the Commons, or the Lords. He said, “I want to see progress being made in the passage of this Bill through the House of Commons. I want to see steps being taken that give us the certainty that we will see this legislation moving forward and that Parliament will enact it. In those circumstances, we will respond positively.” The DUP distributed a report to MPs ahead of the debate, which “sets out the experiences of many who have been negatively impacted since the Protocol became law”.

Leader of the DUP Sir Jeffrey Donaldson | Source: UK Parliament

Former Secretary of State Julian Smith said, “I also fear that it [the Bill] risks creating an impression to Unionism that a black-and-white solution is available when the reality is that, once this Bill has been dragged through the Lords and the courts and after EU responses and reprisals, compromise will ultimately be needed.”

SDLP MP Claire Hanna said the arguments to justify the Bill are “truly mind-bending”. She argued, “We are told that the Bill is about a democratic deficit. That is being protested against by removing the entirety of Government from the people of Northern Ireland, and it will apparently be solved by handing over Henry VIII powers that allow the Government to ride roughshod over everybody in Northern Ireland.”

Alliance MP Stephen Farry told the Commons: “The Bill is opposed by a majority of Members of the Northern Ireland Assembly and, indeed, of voters in Northern Ireland. The business community is deeply concerned about many aspects of the Bill and it is not even effective in getting the DUP to recommit to an Executive.” Farry pointed out that the Government has not sought flexibility from the European Commission on VAT, which is one of the issues the Bill seeks to address. He said there was an alternative to the Bill: “it is to go back and negotiate in good faith to build trust and partnership with the European Union.”

Meetings with business groups were also hosted by the Foreign Office yesterday. Foreign Secretary Truss said they would continue to consult with businesses and the EU “to make sure the implementation works”.

The Commons Library has published a briefing on the Bill, considering questions over whether it breaks international law, why the Government is introducing the Bill, and various reactions to it. On Sunday, Foreign Secretary Liz Truss wrote in the Financial Times, “Aside from its many practical problems, it has created a growing sense that the rights and aspirations of some parts of the community are being undermined.” Truss has also given an interview to the Belfast Telegraph.

Tomorrow, the Commons Northern Ireland Affairs Committee will question international law experts on the Bill. The Hansard Society has published a briefing on the delegated powers in the Northern Ireland Protocol Bill i.e. powers to make secondary legislation conferred on Ministers. Professor Catherine Barnard explains why lawyers are “up in arms” about the Bill, noting, “they see the executive asking parliament to give the executive ever more powers”.

Minister Cleverly gives evidence on EU-UK relationship

On Tuesday 21 June, the Lords European Affairs Committee questioned Minister for Europe and Northern America James Cleverly. While the UK Government has emphasised it would like a negotiated agreement with the EU, Minister Cleverly said there is no date set for the Joint Committee to meet. The EU-UK Joint Committee oversees the implementation of the Withdrawal Agreement and Protocol. He said the last round of negotiations with the EU hadn’t really progressed and that the European Commission’s mandate was limiting progress.

Cleverly said there are other areas where the Protocol dispute is hindering cooperation with the EU, for example the UK’s participation in the Horizon programme (the EU’s collaborative research and innovation scheme) and the Memorandum of Understanding on financial services. Politico reports that senior European scientists have asked European Commission President Ursula von der Leyen to not exclude the UK from Horizon.

Cleverly suggested that the Government had communicated the problems with the Protocol effectively and that there is broad agreement that the Protocol isn’t working, but that it now has to communicate why the Government’s proposals are reasonable and pragmatic. The Minister was asked about NI’s economy appearing to perform better than other parts of the UK and whether the Protocol is contributing to this. Cleverly said it is “not yet clear” why the economy is doing well but suggested it could be because of NI’s larger public sector.

Last week, the Lords Committee also published its report on the UK-EU relationship in financial services, which concludes that the overall outlook for the UK financial services sector post-Brexit is positive but cautions the Government against complacency. The Committee “urges the Government to weigh the benefits of divergence against the costs of implementing new rules.”

Review of Retained EU law

On Wednesday 22 June, the Minister for Brexit Opportunities and Government Efficiency Jacob Rees-Mogg announced in the Commons the publication of the Retained EU law (REUL) dashboard, a catalogue of over 2,400 pieces of legislation, over 300 individual policy areas. This is an increase on the Government’s figure published in May 2022, which was over 1,400 pieces of legislation. Retained EU law refers to EU law (as it was on 31 December 2020) which was converted into UK domestic law by the EU (Withdrawal) Act 2018 when the UK left the EU. The Minister says the dashboard will be updated on a quarterly basis “so the public can ‘count down’ retained EU law as the Government reform it.” The Minister will bring forward the ‘Brexit Freedoms’ Bill, which will create “a targeted power to allow retained EU law to be amended in a more sustainable way, and will go with the grain of the British constitution.” The Institute for Government comments, “It is important that any political decision to repeal or change these laws (in anything other than a limited and technical way) receives proper parliamentary scrutiny in the same way as any other policy proposal would.”

Minister for Brexit Opportunities and Government Efficiency Jacob Rees-Mogg | Source: UK Parliament

The Minister said the that only through reform of retained EU law, the UK can “untangle ourselves from nearly 50 years of EU membership.” He said, “It is right that the public know how much retained EU law there is and that they should be able to hold the Government properly to account for reforming it.” He said the public has “shown great interest in the EU law that remains on our statute book” and said he is encouraging competitiveness in the Cabinet to “inspire rapid reform”. Rees-Mogg said the dashboard would mean “the public can join us on this journey to amend, repeal or replace retained EU law. Together we will make reforms that will create a crucial boost to productivity and help us bring the benefits of growth to the whole country.”

The Minister said the UK’s points-based immigration system, “securing the integrity of the United Kingdom’s internal market”, and allowing gene-edited crops are examples of how the Government is legislating to take advantage of Brexit.

Shadow Minister Stephen Doughty said it “appears to be simply a vanity project”. The dashboard does not provide a comprehensive list of REUL which sits with the competence of the devolved administrations. The Minister states that the United Kingdom Internal Market Act “provided a great swathe of extra powers to the devolved authorities, and that will continue under this Bill and will provide benefits for all the devolved authorities to take back control for themselves.” The Government will ask for legislative consent for the Brexit Freedoms Bill.

Other news

• The Lords International Agreements Committee has published its report on the UK-Australia Free Trade Agreement. It says the UK Government has an “obligation to ensure that Northern Ireland is able to benefit from any new trade agreements and is not disadvantaged compared to the rest of the UK”. It calls on the Government to “ensure that the explanatory materials on future trade agreements routinely cover how trade between Northern Ireland and the other Party will be impacted by the Protocol.” The Committee also calls on the Government to ensure that consultation with the devolved administrations and legislatures is “comprehensive, transparent, detailed and timely, and that their views are represented throughout the negotiations, including on reserved matters that may have an impact on them”.
• The Citizens' Rights Specialised Committee met on 15 June 2022. The UK Government and European Commission published a joint statement. This committee was established in the Withdrawal Agreement to monitor the implementation of the citizens’ rights parts of the agreement, which protects the rights of UK nationals in the EU and EU citizens in the UK.
• The Commons Library has published a briefing on the EU’s legal action against the UK, following the Government’s publication of the Northern Ireland Protocol Bill.
• The UK in a Changing Europe think tank and the University Association for Contemporary European Studies have published a report on ‘The state of the European Union’.
• The DCU Brexit Institute has published its annual report. It includes articles on cross-border data protection, the Protocol on Ireland/Northern Ireland, and financial services.
• The UK Department for Environment, Food and Rural Affairs (Defra) is to intervene in the High Court challenge to Minister Poots’ decision to instruct officials to stop checks at NI ports.