Brexit & Beyond Newsletter

18 May 2022

Welcome to the 18 May 2022 Brexit & Beyond newsletter

Welcome back to the Brexit & Beyond newsletter! Following the 5 May elections to the Northern Ireland Assembly, today’s newsletter contains an overview of recent developments, political positions, and ongoing scrutiny of Brexit and EU-UK relations. The Prime Minister visited Northern Ireland on Monday, and yesterday the Foreign Secretary announced the Government’s intention to introduce legislation in the coming weeks to make changes to the Protocol on Ireland/Northern Ireland. Last week the UK Government also announced legislative plans to “take advantage of the benefits of Brexit”, including a ‘Brexit Freedoms’ Bill.

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UK Government’s legislation to change the Protocol

On Tuesday 17 May, UK Foreign Secretary Liz Truss made a statement in the House of Commons on the UK Government’s intention to introduce legislation in the coming weeks to make changes to the Protocol on Ireland/Northern Ireland. The Foreign Secretary said her preference remains a negotiated solution with the EU and has invited European Commission Vice-President Maroš Šefčovič to a meeting of the Withdrawal Agreement Joint Committee. She said the movement of goods, goods regulation, VAT, subsidy control, and governance parts of the Protocol are not working. The Foreign Secretary said the Bill would include a trusted trader scheme, a ‘green channel’ for goods staying in Northern Ireland, and a dual regulatory regime. On governance, she said the legislation would bring the Protocol “in line with international norms”. The Foreign Secretary said the Government is clear that the Bill is consistent with international law. Responding to a question on this, she said they will set out the legal position in due course.

Foreign Secretary Liz Truss making the statement in the Commons

Foreign Secretary Liz Truss making the statement in the Commons | Source: UK Parliament

Jeffrey Donaldson (DUP) said the statement was “welcome”, adding, “As the legislation progresses, we will take a graduated and cautious approach.” Claire Hanna (SDLP) said, “The fresh election results that show a comfortable majority of people supporting the protocol and an even larger majority rejecting the idea of holding the institutions to ransom.” Stephen Farry (Alliance) said, “In Northern Ireland there is a majority of voters, MLAs and the business community who want to see the issues with the protocol addressed in a pragmatic way, through building trust and partnership with the European Union, and not through damaging unilateral action that will damage the UK’s international reputation, including with the United States.”

European Commission Vice-President Šefčovič responded by saying the UK Government’s announcement raises significant concerns: “Should the UK decide to move ahead with a bill disapplying constitutive elements of the Protocol as announced today by the UK government, the EU will need to respond with all measures at its disposal,” he said. RTÉ reports from Brussels on the reaction from the EU. Business groups in Northern Ireland have said that “anything other than a negotiated outcome is sub-optimal.” Catherine Barnard, Professor of EU law at Cambridge, outlines five legal routes the UK Government may use to override the Protocol.


Prime Minister visits Northern Ireland

Prime Minister Boris Johnson visited Northern Ireland on Monday. Writing in the Belfast Telegraph ahead of his visit, the Prime Minister propounded that “those who want to scrap the Protocol, rather than seeking changes, are focusing on the wrong thing”. He said the Protocol is out of date and hinted at potential action by the UK Government: “I hope the EU’s position changes. If it does not, there will be a necessity to act.”

The PM met separately with Northern Ireland’s five main political parties at Hillsborough Castle. Johnson said, "not one of them likes the way it [the Protocol] is operating, they all think it can be reformed and improved…we would love this to be done in a consensual way with our friends and partners.. But to get that done, to have the insurance, we need to proceed with a legislative solution at the same time”. Sinn Féin called their meeting with the PM “tough”, while the DUP’s Jeffrey Donaldson said, “I need action and that's how I will judge what the Prime Minister does, not necessarily what he says.” Alliance’s Naomi Long said, “Whatever about the Protocol, things are not resolved in Northern Ireland by us sitting outside of government”. The Belfast Telegraph has a summary of the political parties’ reactions.

RTÉ reports that Irish Government Minister for Foreign Affairs Simon Coveney said the European Commission is working on solutions to distinguish goods which move GB-NI and stay in NI, rather than move on to the EU single market: “But of course, it needs a partner that can help them to deliver an outcome that moves this process forward through better labelling, through real time sharing of data, and a whole range of other regulatory issues that only the British Government can give answers to," he said.


Northern Ireland Assembly election

On 5 May, voters in Northern Ireland went to the polls, returning Sinn Féin with 27 seats, the Democratic Unionist Party (DUP) with 25, Alliance with 17, the Ulster Unionist Party (UUP) with 9, the Social Democratic and Labour Party (SDLP) with 8, Traditional Unionist Voice (TUV) and People Before Profit Alliance (PBPA) with one each, and two Independents. Read the election report from the NI Assembly Research and Information Service.

First meeting of the new Assembly

On Friday 13 May, newly elected Members took up their seats in the Northern Ireland Assembly. Following this, the first item of business was the election of a Speaker. Two nominations were made, however, ahead of the sitting the DUP had made it clear they would not support the election of a Speaker, which requires cross-community support. This means that the Assembly cannot meet. Members across political parties made statements on the implications of a lack of Assembly and Executive, as well as the cost of living crisis and issues with the health service.

Michelle O’Neill (Sinn Féin) said, the democratic outcome of the election must now be respected…I stand ready to take on the leadership of the Northern Ireland Executive as a First Minister for all in a Government who work for all the people.” Paul Givan (DUP) stated that his party “received a mandate in the Assembly election to remove the Irish Sea border. Our mandate will be given respect...It is because we believe in devolution and we want the stability of these institutions to endure that we are taking the action that we are taking today.”

 The first sitting of the new Northern Ireland Assembly

The first sitting of the new Northern Ireland Assembly | Source: NI Assembly

Naomi Long (Alliance) remarked, “We accept that there are issues with the Protocol and that those issues should be resolved, but nothing that the protocol does to harm Northern Ireland will be helped at all by the lack of a functioning Government.” Doug Beattie (UUP) pointed out that electing a Speaker would have “[allowed] us to do part of the business that we can and to move within the budgets that we have...If we do not, there will be silence.” Matthew O’Toole (SDLP) said, “In stifling not just the creation of an Executive but even the appointment of a Speaker to allow us to have basic debates and hold caretaker Ministers to account, the DUP has demeaned the entire democratic process.”

Jim Allister (TUV) declared that the Protocol “decrees and operates on the basis that Great Britain is a foreign country. That is something that no unionist can ever come to terms with. Therefore, all unionists should be on the side of exercising the leverage that is available to seek to force change to that situation.” Gerry Carroll (PBPA) contended that “poll after poll has shown that it [the Protocol] is not a priority nor the number-one issue that people are vexed about, whether they class themselves as unionist, nationalist or other. In many ways, it is a manufactured crisis…The vast majority of people did not vote for this and should not be held to ransom by the DUP's self-serving actions.” Claire Sudgen, an Independent MLA, said, “the protocol affects everyone in Northern Ireland. The issues relating to the protocol are not insurmountable, but they require a cross-community approach or an approach from every Member to try to fix those issues. We will not do that by not sitting here. We are not a voice by not sitting here.”

The Assembly did not elect a Speaker and therefore no further business could take place, including the election of a First Minister and deputy First Minister.


EU-UK tensions

Last week, UK Foreign Secretary Liz Truss held a phone call with European Commission Vice-President Maroš Šefčovič, which was described as ‘tetchy’. The Foreign Secretary said the EU proposals for the Protocol would “take us backwards by creating more checks and paperwork” and hinted at its unilateral legal action, saying that “if the EU would not show the requisite flexibility to help solve those issues, then as a responsible government we would have no choice but to act.”  Vice President Šefčovič said, “It continues to be of serious concern that the UK government intends to embark on the path of unilateral action” arguing the EU proposals would “substantially improve the way the Protocol is implemented”, and that unilateral action would risk Northern Ireland’s access to the EU single market.

The Guardian reports that a delegation from the US Congress will fly to London amid the tensions surrounding the Protocol.


EU-UK Parliamentary Partnership Assembly

The first meeting of the EU-UK Parliamentary Partnership Assembly (PPA) took place in Brussels on 12 and 13 May. The PPA was established under the Trade & Cooperation Agreement (TCA) and acts as a forum for parliamentarians from Westminster and the European Parliament to exchange views on the implementation and operation of the Agreement. The PPA may make recommendations to the Partnership Council which oversees the TCA.

The PPA discussed Withdrawal Agreement issues, including the Protocol on Ireland/Northern Ireland, the importance of building a new multi-dimensional EU-UK relationship, and cooperation on energy, in the context of high energy prices and the war in Ukraine. Minister for the Cabinet Office Michael Ellis and European Commission Vice President Šefčovič addressed the PPA. Members of the Senedd Cmyru and Scottish Parliament attended as observers.  Co-chairs Nathalie Loiseau (Renew, France) and Sir Oliver Heald (Conservative Party, House of Commons) published a joint statement following the meeting. 

 First meeting of the EU - UK Parliamentary Partnership Assembly

First meeting of the EU - UK Parliamentary Partnership Assembly |

Source: European Parliament / European Union 2022


Progress on medicines

In April 2022, the European Parliament and the EU Council approved changes to EU law which aim to guarantee the continued supply of medicines to Northern Ireland. Issues around medicines supply to Northern Ireland have caused concern as under the Protocol, medicines in Northern Ireland are 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) – potentially causing delays in new medicines being available in Northern Ireland when they are already approved and available in GB.

The Lords Sub-Committee on the Protocol received a response from the UK Minister for Health regarding this issue on 4 May 2022. The Minister states that the UK Government continues to monitor two supply risks relating to the application of EU law for centrally authorised products and the three-year deadline on the Falsified Medicines Directive. He states that while the UK Government proposed that medicines should be removed from the scope of the Protocol entirely, it believes the EU legislation does address some immediate and urgent issues.


Queen’s Speech

The Queen’s Speech, which sets out the UK Government’s policy and legislative agenda for the parliamentary session ahead, took place on 10 May. Legislative plans outlined in the speech include a Brexit Freedoms Bill; a Procurement Bill to “take advantage of the benefits of Brexit by reforming the UK’s public procurement regime”; a Financial Services and Markets Bill to establish “a coherent, agile and internationally-respected approach to financial services regulation” post-Brexit; a Data Reform Bill to “create a new pro-growth and trusted UK data protection framework”; and a Trade (Australia and New Zealand) Bill to implement these ‘from scratch’ trade deals.

The Government says the Brexit Freedoms Bill will “end the supremacy of European law and seize the benefits of Brexit by ensuring regulation fits the needs of the UK”, and ensure that retained EU law can be amended, repealed or replaced. On 20 April, the Commons European Scrutiny Committee took evidence from Jacob Rees-Mogg, Minister for Brexit Opportunities and Government Efficiency, on regulating after Brexit and the ‘Brexit Freedoms’ Bill.

More details about the UK Government’s planned legislation can be found in its briefing notes. The Lords Library has published research on various policy areas in the speech.

Following the speech, and suggestions of the UK taking unilateral action on the Protocol, the European Commission released a statement, saying such action “would only make our work on possible solutions more difficult.”


Parliamentary scrutiny

The House of Lords Sub-Committee on the Protocol on Ireland/Northern Ireland continues its inquiry on the impact of the Protocol. On 11 May, it heard evidence from the retail and industry sector, including Marks and Spencer Ireland and Northern Ireland Managing Director Sacha Berendji, who said there is a reduced shelf life for some products, and increased costs and wastage as a result of onerous Protocol requirements. Witnesses stressed that they would like to see digital solutions and trusted trader arrangements.

In the House of Commons, the European Scrutiny Committee heard evidence from the Minister for Europe and North America James Cleverly on 28 April. On 20 April, the Northern Ireland Affairs Committee heard from representatives of the tourism industry on tourism, the Common Travel Area, and the Electronic Travel Authorisation requirement in the Nationality and Borders Act, which received royal assent on 28 April 2022.

On 22 March, the Lords Protocol on Ireland/Northern Ireland Sub-Committee published its report ‘Scrutiny of EU legislative proposals within the scope of the Protocol on Ireland/Northern Ireland’. As of 15 March, the Committee had received 74 Explanatory Memoranda on EU legislation relevant to Northern Ireland under the Protocol. It states the Protocol has “created a democratic deficit” and welcomes EU proposals on engagement but says “it needs to do more”. The Committee calls on the EU “to enhance transparency around the application of EU law to Northern Ireland, take account of the impact of EU law on Northern Ireland’s particular circumstances, and engage with Northern Ireland businesses, civic society and political institutions at an early stage in order to give them a voice concerning the application and implications of such legislation.”

The Commons European Scrutiny Committee has recently published two reports. Its report of 3 May considers the EU Single Customs Window for trade in goods. Its first report of this parliamentary session, published yesterday, includes analysis on the EU’s proposals for a Carbon Border Adjustment Mechanism (CBAM), and legislation on Plant Health, Organic products, and Deforestation and Forest Degradation, which may be applicable in Northern Ireland under the Protocol.


Common Frameworks

Common Frameworks have been developed in policy areas which were previously governed by EU law and which intersect with devolved competence.  They are designed to provide a common UK policy framework in particular areas, while still providing flexibility for devolved policy making. 32 Common Frameworks apply to Northern Ireland. Of these, six have not yet been published. 25 have been provisionally agreed and submitted to legislatures for scrutiny; one framework has been fully implemented. Legislatures in Scotland, Wales and Westminster have continued to scrutinise the frameworks over recent months. Currently frameworks are being operated on a provisional basis.

In the Internal Market Act, provisions were made to allow some regulations to be excluded from the market access principles if agreed through the Common Frameworks process. These market access principles essentially mean that goods or services permitted to be sold/imported into any part of the UK can be sold in any other part of the UK. The Inter Ministerial Group for Environment, Food and Rural Affairs met on 21 March and the meeting included discussions on a narrow exclusion from the UK Internal Market Act covering bans on the supply of some single use plastics, which the Scottish Government has sought. While Scottish and Welsh Ministers welcomed that an exclusion had finally been agreed, “they were clear that their preference remained for a much broader exclusion to align with devolution and to avoid needing to revisit the process in the near future for further bans on single use plastic”. They also “repeated concerns about the impact of the UK Internal Market Act on future policy developments.”

On 29 March, the Lords Common Frameworks Scrutiny Committee held an evidence session with Sue Gray, Second Permanent Secretary at Cabinet Office, on the Common Frameworks process. On 22 March 2022, the Office for the Internal Market published a report giving an overview of the UK internal market.

Intergovernmental meetings

Other new structures for inter-governmental engagement, which were established in the Intergovernmental Relations Review, have met in recent months. The Interministerial Standing Committee met on 23 March. The Finance: Interministerial Standing Committee met on 21 March. The Intergovernmental Relations Review also set out intentions to establish an Interministerial Group (IMG) on the UK-EU Trade and Cooperation Agreement, and an IMG on trade.


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