Brexit Brief Newsletter

September 2019

The September issue of the Brexit Brief includes news of Operation Yellowhammer; the PSNI Chief Constable’s view on policing potential border checkpoints;  details of the Supreme Court’s ruling on prorogation of Parliament and the Prime Minister’s statement to Parliament the following day.  We have extracts of a speech by Head of the Northern Ireland Civil Service; information on the possible impact of Brexit on the economic forecast for the Republic of Ireland and the latest proposals from the Government on the border.

 

NEW GROUPING OF MPs ESTABLISHED

On 10 September, a group of MPs launched a new group in order to support efforts to secure a withdrawal deal. The group calling itself ‘MPs for a Deal’ consisting of Conservative, Labour and Liberal Democrat MPs, says it would try to gather support for an agreement based on one former Prime Minister Theresa May had worked on with the Labour Party. 

Attending the group’s launch were former Tory ministers Rory Stewart and Nick Boles, now sitting as independents, current Conservative MPs Victoria Prentis, Alex Chalk and Jeremy Lefroy, Liberal Democrat former minister Sir Norman Lamb and Labour’s Stephen Kinnock, Caroline Flint, Gloria De Piero, Kevin Barron and Emma Lewell-Buck.

Speaking at the press conference to launch the group, Stephen Kinnock said that the current deal is “… the basic foundation of a perfectly pragmatic deal.  The fact is that we are rooted in reality here. This is not a unicorn. We have something here which is the basic foundation of a perfectly pragmatic deal that we believe can command a majority in Parliament and also begin to reunite our deeply divided country and even at this 11th hour we think there is time to do it.

We hope that by 14 October at the latest, if not before, this Prime Minister will be ready to bring a deal to Parliament, and MPs for a Deal wish him well in doing that and will be backing that and supporting that, because it is the only way to take the country forward.”

Mr Kinnock said the initiative was “not about reproducing a carbon copy” of the deal that has failed to pass to get through Parliament three times.

 

OPERATION YELLOWHAMMER: GOVERNMENT PUBLISHES ‘REASONABLE WORST CASE PLANNING ASSUMPTIONS’

On 11 September, the Government published its response to the humble address motion brought by Dominic Grieve MP which called for release of details of Operation Yellowhammer, the Government’s contingency plan for a no deal Brexit and for the release of all correspondence and communications (including communication via social media channels) relating to the prorogation of Parliament.

Responding on behalf of the Government, Chancellor of the Duchy of Lancaster Michael Gove responded to Mr Grieve stating:0.

“I have written as attached to the Rt Hon Hilary Benn to provide to the EU Exit Select Committee the text of Yellowhammer planning assumptions which detailed a reasonable worst case scenario….”

With regard to release of communications relating to prorogation as requested in the humble address motion, Mr Gove writes:

“…. The procedure has not been, nor should it be, used to purport to place obligations on civil servants, or to seek to understand the private views of those individuals. Ministers, not civil servants, are the decision makers. They are accountable, both in Parliament and to the electorate, for the decisions taken. This Address is therefore inappropriate in principle and in practice, would on its own terms purport to require the Government to contravene the law, and is singularly unfair to the named individuals….”

In his letter to Hilary Benn, Chair of the Commons Committee on Exiting the EU, Mr Gove states:

“We are currently updating the assumptions for Operation Yellowhammer but in light of the motion brought forward by the Rt Hon Dominic Grieve MP that was passed in the House of Commons on Monday night, I thought it would be helpful to publish the Operation Yellowhammer document based on assumptions drawn up under the last Government. This document is complete save for one section that has been marked as redacted on the basis of its commercial sensitivity….”

He concludes:

“…. during the debate on 9 September, the Shadow Secretary for Exiting the EU incorrectly stated that the Yellowhammer assumptions represent a ‘most likely scenario’ and are a Brexit ‘impact assessment’. I should reiterate that the document is neither an impact assessment, nor a prediction of what is most likely to happen. It describes what could occur in a reasonable worst case scenario, thus providing a deliberately stretching context for government planning to ensure that we are prepared for Exit….”

The Operation Yellowhammer document published on 11 September is entitled ‘HMG Reasonable Worst Case Planning Assumptions as of 2 August 2019’. 

It contains a range of information on key planning assumptions across a range of sectors.  It states:

“Public and business readiness for a no-deal will remain at a low level, and will decrease to lower levels, because the absence of a clear decision on the form of EU Exit (customs union, no deal etc.) does not provide a concrete situation for third parties to prepare for. Readiness will be further limited by increasing EU Exit fatigue, due to the second extension of Article 50, which will limit the effective impact of current preparedness communication. [To be reviewed]”

On a key planning assumption which includes reference to cross border trade:

“On D1 ND (i.e. Day One No Deal) HMG will operationalise the “no new checks with limited exceptions” model announced 13 March, establishing a legislative framework and essential operations and system on the ground, to avoid an immediate risk of a return to a hard border on the UK side. The model is likely to prove unsustainable due to significant economic, legal and biosecurity risks and no effective unilateral mitigations to address this will be available.

With the UK becoming a third country, the automatic application of the EU tariff and regulatory requirements for goods entering Ireland will severely disrupt trade. The expectation is some businesses will stop trade or relocate to avoid paying the tariff which will make them uncompetitive or to avoid the risk of trading illegally, while others will continue to trade, but experience higher costs which may be passed on to consumers.

The agri-food sector will be the hardest hit, given its reliance on highly integrated cross border supply chains and high tariff and non-tariff barriers to trade. Disruption to key sectors and job losses are likely to result in protests and direct action with road blockages. Price and other differentials are likely to lead to the growth of the illegitimate economy. This will be particularly severe in border communities where both criminal and dissident groups already operate with greater threat and impunity. Given the tariff and non-tariff barriers to trade, there will be significant pressure to agree new arrangements which supersede the day one model within days or weeks. (NIO/NICS)”

 

WELSH GOVERNMENT NO DEAL PLANNING


On 16 September, the Welsh Government published a document setting out its ‘overview of the main strategic risks for no deal for Wales and explaining the actions we are putting in place to mitigate them as far as is possible.”  The document includes assumptions set out in the Operation Yellowhammer documents, published by the UK Government on 11 September.

The document states:

“We have always said that leaving the EU without a deal would be catastrophic for Wales and should not be considered an acceptable outcome – it should be avoided at all costs.

The economic impacts on Wales – and on the wider UK economy – would be profound, but the consequences of no deal would go much further, rippling through all aspects of society and local communities. It is not a resolution and not the end of uncertainty. The impacts would be felt for years, particularly by the most vulnerable. Despite our vigorous opposition to the UK Government’s current political Brexit strategy, which we believe will lead to no deal, it is our responsibility – as the government of Wales – to ensure that businesses, individuals and the public, private and third sectors as a whole are as prepared as feasibly possible for the possibility of a no deal exit. It is our responsibility to plan and to put in place, insofar as we are able, measures to mitigate the long catalogue of impacts, which would be caused by leaving the EU without a deal…………

The biggest determining factor affecting our ability to prepare effectively is the UK Government itself, and its willingness to provide additional funding, share information and meaningfully work with us.

Unfortunately, under the new UK Government, engagement and information flow has significantly reduced, just as its activity to prepare for a no deal appears to have significantly increased.”

The Welsh Government describes its preparations as being focused on;

  • UK-wide preparedness – working with UK Government departments and other devolved administrations on projects extending beyond Wales;
  • Welsh Government action – working with key stakeholders to develop and implement actions to address the strategic risks of a no deal Brexit;
  • Legislation – ensuring Wales has a functioning statute book for exit day;
  • Civil contingencies – developing a response to the most immediate and urgent issues.

Strategic risk: Major transport disruption for people and goods at the borders. As additional checks are required once the UK is no longer part of the Single Market and Customs Union. This is particularly significant at the Northern Ireland/Ireland border, the Channel crossings and at sea ports, including in Wales, where the role of Welsh ports is key to trade with Ireland. There is also potential for delays at airports. Any delays could have significant knock-on impacts on the wider transport network, for example requiring "stack" operations on major highways and roads to ports.

A number of the economic and other risks outlined below are linked to the critical issue of ensuring a smooth flow of goods through major ports - any delays could cause issues for the availability of some (fresh) food products and medicines and have a damaging impact on some trade sectors. The recently released Yellowhammer assumptions suggest a reduction to the flow rate to 40% to 60% of current levels of goods moving across borders compared to current levels if there is no mitigation. This could last up to three months after exit day before it improves to around 50-70%.

Any mitigating actions the UK Government decides to take in these areas can only represent part of the picture, as impacts will be dependent on approaches taken by the EU27 and in the European Union - long delays to outbound traffic as a result of stringent controls in France and Ireland and have very serious knock-on effects on inbound traffic, for example.

 

LIBERAL DEMOCRATS PLEDGE TO REVOKE ARTICLE 50 IN A MAJORITY GOVERNMENT

New leader of the Liberal Democrats Jo Swinson announced that the if the party comes to power in the next general election, it would revoke Article 50 and cancel Brexit.  The policy was agreed by Lib Dem members on 15 September at their party conference in Bournemouth. Previously, the party has backed another referendum or "People's Vote", saying they would campaign to Remain. The commitment to cancel Brexit would only apply in the event that the party held a majority in Government.

 

PRIME MINISTER MEETS COMMISSION PRESIDENT

On 16 September, Prime Minister Boris Johnson met with President of the European Commission Jean-Claude Juncker in Luxembourg.  It was the pair’s first face-to-face meeting since Mr Johnson became Prime Minister. 

The Government’s statement following the meeting:

“The Prime Minister and President Juncker had a constructive meeting this lunchtime. The Brexit Secretary and Michel Barnier were also in attendance.

The leaders took stock of the ongoing talks between the UK’s team and Taskforce 50. The Prime Minister reconfirmed his commitment to the Good Friday/Belfast Agreement and his determination to reach a deal with the backstop removed, that UK parliamentarians could support. The Prime Minister also reiterated that he would not request an extension and would take the UK out of the EU on the 31st October.

The leaders agreed that the discussions needed to intensify and that meetings would soon take place on a daily basis. It was agreed that talks should also take place at a political level between Michel Barnier and the Brexit Secretary, and conversations would also continue between President Juncker and the Prime Minister.”

The European Commission’s statement following the meeting:

“President Jean-Claude Juncker and Prime Minister Johnson had a working lunch today in Luxembourg. The aim of the meeting was to take stock of the ongoing technical talks between the EU and the UK and to discuss the next steps.

President Juncker recalled that it is the UK's responsibility to come forward with legally operational solutions that are compatible with the Withdrawal Agreement. President Juncker underlined the Commission's continued willingness and openness to examine whether such proposals meet the objectives of the backstop. Such proposals have not yet been made.

The Commission will remain available to work 24/7. The October European Council will be an important milestone in the process. The EU27 remain united.

President Juncker was accompanied by the European Commission's Chief Negotiator, Michel Barnier.

President Juncker will travel to Strasbourg later today and will address the Plenary session of the European Parliament on Wednesday morning.”

Later that day, the Prime Minister met with Xavier Bettel, Prime Minister of Luxembourg. Due to noisy protestors outside Mr Bettel’s office, Mr Johnson did not participate in the planned press conference.  Mr Bettel went ahead with his remarks, saying:

“People need to know what is going to happen to them in six weeks’ time. They need certainty and they need stability. You cannot hold their future hostage for party political gain.  So now it is on Mr Johnson.”

Speaking later at the British Embassy in Luxembourg, Mr Johnson said:

“Over the last couple of weeks, there’s been a lot of work … papers have been shared. But we are now at the stage where we need to start accelerating the work and that was the agreement today with Jean-Claude Juncker and Michel Barnier.

“We need to manage this carefully. Yes there is a good chance of a deal, yes I can see the shape of it. Everybody can see roughly what could be done.”

 

PSNI CHIEF CONSTABLE ON POLICING POTENTIAL BORDER CHECKPOINTS

Speaking to the Guardian newspaper on 18 September on the potential for checkpoints on the border in Ireland, Simon Byrne, Chief Constable of the Police Service of Northern Ireland said:

 “People do not want a return to the images of 20-30 years ago, where, frankly, history shows us that far more police officers and 20,000 soldiers could not protect the border, so I doubt we are going to do it now.

“We are very clear here. We do not support the establishment of checkpoints or monitoring cameras right near the border and we’d be very reluctant to be drawn there because of the threat to our officers.”

He continued:

“One of the strongest messages I’ve heard since I’ve been here is the desire from border communities for normality through that period of Brexit, if that’s what we get to.

“The border is porous. Half a field is in one country, and half in another. They want to carry on with the fact they can take the kids to school without going through checkpoints and all that sort of anxiety.

“We’re conscious that normality is important. We’re conscious that anything that looks like state infrastructure in that border area could cause problems in terms of … drawing our staff into attack.”

 

EUROPEAN PARLIAMENT DEBATES BREXIT

On 18 September, the European Parliament held a debate on the UK’s exit from the EU. The Parliament agreed a resolution saying it supports an ‘orderly Brexit’ based upon the draft Withdrawal Agreement.  The resolution passed with 544 votes in favour, 126 against and 38 abstentions.

In the resolution, MEPs confirm that they would be ready to return to the EU’s original proposal for a Northern Ireland-only backstop; they are also open to examining “alternative solutions” if they are legally and operationally credible and in line with EU guiding principles. MEPs stress, however, that they will not consent to a Withdrawal Agreement without a backstop.

The Parliament’s resolution also:

“….. Stresses that should the UK withdraw from the EU without an agreement this would be entirely the responsibility of the UK Government; points out furthermore the implications such a ‘no-deal exit’ would have for the border between Northern Ireland and Ireland as well as for the operation and implementation of the Good Friday Agreement;

…………… Notes that there can be no transition period in the absence of the Withdrawal Agreement nor any ‘mini-deals’ put in place to help mitigate the disruption of a disorderly withdrawal of the UK from the EU;

Stresses that further negotiations between the EU and the UK after the UK has withdrawn from the EU without a deal can only take place on condition that the UK honours its obligations and commitments in respect of citizens’ rights, the financial settlement and the Good Friday Agreement in all its parts;

Notes that in the case of a ‘no-deal exit’, the UK’s financial and other obligations will still exist; affirms that in such a case it will refuse to give consent to any agreement or agreements between the EU and the UK unless and until the UK honours its commitments….”

MEPs have stated that the Parliament is ‘open to a possible extension of the Article 50 negotiation period, if requested by the UK ‘provided it is justified and has a specific purpose, such as avoiding a “no-deal” departure, holding general elections or a referendum, revoking Article 50, or approving the Withdrawal Agreement. They also add that an extension should not affect the work and functioning of the EU institutions’

 

BREXIT SECRETARY MEETS COMMISSION’S BREXIT NEGOTIATOR

On 20 September, Secretary of State for Exiting the EU Steve Barclay met with the Michel Barnier, Brexit negotiator for the European Commission.  Unconfirmed media reports suggested that the talks included discussion on UK proposals for an all-Ireland Sanitary and Phytosanitary (SPS) zone for agri-food and animal health which would have selective alignment with EU rules and exemptions in a number of areas including EU labelling rules.  There  would be no North-South alignment on customs or industrial goods and instead trusted trader schemes, technological solutions and checks away from the border would be used.

Following the meeting, the Commission issued a statement;

“Michel Barnier met Steve Barclay in Brussels today where they had a discussion on the state of play of the ongoing Brexit talks, both in relation to the backstop to avoid a hard border on the island of Ireland and the Political Declaration on the Future Relationship.

Michel Barnier and Steve Barclay agreed that technical talks will continue. These talks deal with a first set of concepts, principles and ideas that the United Kingdom has put forward in talks with TF50 (Taskforce 50).

It is essential that there is a fully workable and legally operational solution included in the Withdrawal Agreement. We remain willing and open to examine any such proposals that meet all the objectives of the backstop.

Michel Barnier and his team will keep the European Parliament and the Council informed.”

 

HEAD OF NORTHERN IRELAND CIVIL SERVICE SPEAKS ON BREXIT

Head of the Northern Ireland Civil Service David Sterling gave a keynote address at the Centre for Border Studies 20th anniversary conference on 20 September in Dundalk.  His speech covered a number of issues.  On Brexit he said:

“… Many of the things that take place at other borders haven’t had to happen at the Irish border because both jurisdictions were within the EU. And trade, especially for our SME economy, is highly integrated on the Island of Ireland.  Around 8,000 NI firms export around £3.9 billion of goods and services to Ireland.  Around 40,000 jobs rely on EU exports.

In this context our assessment in NICKS is that “No Deal” would have a profound and long-lasting impact on Northern Ireland due to a number of factors:

    • Severe and acute economic impact with a Treasuyre forecast 9% reduction in NI GVA over  10 years
    • Uncertainty about future border controls and regulatory differences with immediate impact on the agri-food sector
    • Agri food is highly integrated on the Island of Ireland, and strong trade into the GB internal market.
    • NI exports £309m worth of live animals and raw milk to Ireland for processing - these sales would face substantial tariff and non-tariff barriers in a no deal.
    • Currently 35% of milk from NI farms is sent to Ireland for processing and NI farmers export 44% of live sheep for slaughter to Ireland for processing.
    • NI will have even less tariff protection than the rest of the UK with the decision to collect no tariffs on imports crossing the border from Ireland.
    • There is potential for regulatory divergence in the Single Electricity Market.  The lights will not go out, but we could see an increase in prices.
    • We may face significant disruption to supplies including foods, medicines and chemicals, again leading to higher prices.
    • Sadly the PSNI assess that there is potential for public protest and civil unrest perhaps leading to disruption to normal life

All of this, added in with a sense of threat to people’s identity is leading to political instability, and making it more difficult for parties to agree to restore the institutions in Northern Ireland and is seeing increasing calls for a border poll

Our assessment is that the cumulative impact of all this would be grave for NI - politically, economically and societally.

Our job, in the Northern Ireland Civil Service, is to work through the implications, manage the risk and help make the transition as smooth as possible for citizens and business. We are navigating significant uncertainty and trying to ensure that people are as well-informed as possible about what Brexit means for them.

And when I focus on citizens, I am also reminded of the need to ensure that EU citizens in Northern Ireland know their rights and are encouraged and enabled to exercise them under the Settled Status Scheme. We welcome the contribution EU citizens make in Northern Ireland and we will be taking all possible steps to promote the Scheme…..”

 

BARNIER ON GOVERNMENT PLANS FOR THE BORDER

Chief Brexit negotiator for the European Commission Michel Barnier held a meeting with the German Foreign Minister Heiko Maas in Berlin on 23 September.  Speaking following the meeting, Mr Barnier said

"The new government of the UK wants us to get rid of this solution, the so-called backstop and wants…a regulatory and customs land border on the island of Ireland.

“The UK government also wants the EU to change the way the internal market and border control operates after Brexit.

“As I am sure you will understand, this is unacceptable. My mandate is clear from the 27 leaders, the EU and the European parliament: safeguarding peace and stability in Ireland and protecting the integrity of the single market."

"Let me therefore put it clearly that based on current UK thinking, it is difficult to see how we arrive at a legally operable solution that fulfils all the objectives of the backstop."

 

 

SUPREME COURT RULES ON PROROGATION OF PARLIAMENT

On 24 September, the Supreme Court ruled on challenges to the Prime Minister’s prorogation of Parliament.  The panel ruled on whether firstly this was an issue which should be considered by the court and secondly whether the prorogation was lawful.

The panel of eleven judges gave a unanimous verdict that the prorogation was unlawful.

Delivering the judgement, the President of the panel Lady Hale said:

“The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”. However, in considering prerogative powers, it is necessary to distinguish between two different questions. The first is whether a prerogative power exists and if so its extent. The second is whether the exercise of that power, within its limits, is open to legal challenge. This second question may depend upon what the power is all about: some powers are not amenable to judicial review while others are. However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that.

This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.

The second question, therefore, is what are the limits to that power? Two fundamental principles of our Constitution are relevant to deciding that question. The first is Parliamentary sovereignty - that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second fundamental principle is Parliamentary accountability: in the words of Lord Bingham, senior Law Lord, “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.

For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.

If the prorogation does have that effect, without reasonable justification, there is no need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.

The third question, therefore, is whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October. Proroguing Parliament is quite different from Parliament going into recess. While Parliament is prorogued, neither House can meet, debate or pass legislation. Neither House can debate Government policy. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch after the Queen’s Speech. During a recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual. This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October.

Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme. No justification for taking action with such an extreme effect has been put before the court. The only evidence of why it was taken is the memorandum from Nikki da Costa of 15th August. This explains why holding the Queen’s Speech to open a new session of Parliament on 14th October would be desirable. It does not explain why it was necessary to bring Parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days. It does not discuss the difference between prorogation and recess. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement, on 31st October. It does not discuss what Parliamentary time would be needed to secure Parliamentary approval for any new withdrawal agreement, as required by section 13 of the European Union (Withdrawal) Act 2018.

The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification…………

……….. This Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.

It is for Parliament, and in particular the Speaker and the Lord Speaker to decide what to do next. Unless there is some Parliamentary rule of which we are unaware, they can take immediate steps to enable each House to meet as soon as possible. It is not clear to us that any step is needed from the Prime Minister, but if it is, the court is pleased that his counsel have told the court that he will take all necessary steps to comply with the terms of any declaration made by this court………”

Speaking outside Parliament, the Speaker of the House of Commons announced that the had instructed officials to make arrangements for the House of Commons to sit the following day, i.e. 25 September. 

The Prime Minister was in New York for a meeting of the United Nations General Assembly. In answer to questions from journalists, Mr Johnson said:

“Yes obviously this is a verdict that we will respect and we respect the judicial process. I have to say that I strongly disagree with what the justices have found. I don’t think it’s right but we will go ahead and of course Parliament will come back  I do think there’s a good case for getting on with a Queen’s Speech anyway and we’ll do that.  But I think the most important thing is that we get on and deliver Brexit on October 31st. And clearly the claimants in this case are determined to try to frustrate that and to stop that.  i think it would be very unfortunate if Parliament made that objective which the people want delivered more difficult. But we’ll get on.”

 

PARLIAMENT MEETS FOLLOWING SUPREME COURT JUDGEMENT

Parliament met on 25 September.  The Prime Minister made a statement to the House. On the Brexit negotiations he said:

“Some 64 days ago, I was told that Brussels would never reopen the withdrawal agreement; we are now discussing a reopened withdrawal agreement in the negotiations. I was told that Brussels would never consider alternatives to the backstop—the trap that keeps the UK effectively in the EU but with no say; we are now discussing those alternatives in the negotiations. I was told that Brussels would never consider arrangements that were not permanent; we are now discussing in the negotiations an arrangement that works on the principle of consent and is not permanent. I was told that there was no chance of a new deal, but we are discussing a new deal, in spite of the best efforts of the Labour party and this Parliament to wreck our negotiations by their attempts to take no deal off the table.”

Speaking about the obligations of European Union (Withdrawal) (No. 2) Act 2019, the Prime Minister said:

“….. about the Benn-Burt Act, I will say what I am sure the Leader of the Opposition understands. We will, of course, obey the law and we will come out of the EU on 31 October.”

Ian Murray (Labour) asked the Prime Minister:

“… if he does not get a deal or a no deal through this House by 19 October, will he seek an extension to 31 January from the European Union?"

The Prime Minister responded “No”

 

BREXIT PREPAREDNESS: CORRESPONDENCE WITH THE EU INSTITUTIONS

Secretary of State for Exiting the European Union Steve Barclay wrote to the European Commission on 25 September setting out that a deal remains the UK’s primary objective.

His letter also stated:

I also touched on our no deal preparations when we met. It is the responsibility of both sides as far as possible to protect our citizens and to prepare our businesses for the possibility that, despite all our efforts, agreement cannot be reached on the Withdrawal Agreement and Political Declaration. Nevertheless there are many areas where we need either to improve our mutual readiness or put in place practical mitigations that work for us both. Given the short time remaining until 31 October, I hope that EU and UK officials can now exchange information, and discuss and understand our respective plans to ensure we meet our objectives, because there will be insufficient time to complete such work if left until the last days of October.

The Secretary of State outlined that there are a number of areas that would benefit from structured engagement and exchange of information including how to maintain the flow of trade in goods and passengers at points of entry/exit; the exchange of data; and operational matters in respect of citizens’ rights.

The European Commission’s Chief Negotiator Michel Barnier replied to the Secretary of State:

As we mentioned in previous letters to you and your predecessors, we believe that the Withdrawal Agreement is the best way to protect citizens and businesses. Every issue raised in your letter - from trade in goods to citizens' rights and data flows - has already been addressed comprehensively in the Withdrawal Agreement. There is no other way to achieve all the benefits that the Withdrawal Agreement provides.

As regards 'no-deal' preparations, the EU has already finalised its work, as set out in the European Commission's six "preparedness Communications" adopted between July 2018 and September 2019, as well as in the 100 "Brexit preparedness notices" published since May 2017. We will not enter into any negotiations with the United Kingdom on these matters.

You state with "flexibility and creativity", a deal can be possible. As you know, the EU has already shown considerable flexibility and creativity throughout the negotiations and we are open to consider all legally operative solutions that meet all the objectives of the backstop, I am looking forward to seeing you tomorrow in Brussels to discuss any solutions or ideas you may have in this respect.

 

BREXIT IMPACT ON IRELAND’S ECONOMIC FORECAST

Publishing its Quarterly Economic Commentary for Autumn 2019 on 26 September, the independent think-tank the Economic and Social Research Institute in Dublin said that a no-deal Brexit could lead to a recession in Ireland.

“From an international perspective the deterioration in the outlook for many of our main trading partners is a concern and suggests that external sources of growth may be somewhat diminished in 2020. A further source of uncertainty is the nature of the UK’s proposed exit from the European Union. This has particular complications for the domestic budgetary process given the UK government’s insistence on leaving the European Union by the end of October irrespective of whether an agreement has been reached.

Under our baseline outlook, we believe the economy will grow by over 3 per cent in 2020; however if a No-Deal Brexit were to materialise in late 2019, output growth could dissipate entirely next year. Indeed, it is not inconceivable that the Irish economy could contract in 2020 under such a scenario.

This means that the most appropriate budgetary stance may vary significantly depending on the Brexit process. If the domestic economy continues to perform strongly into 2020 then a mildly contractionary budget is advisable to reduce the possibility of overheating. If the Brexit issue is resolved satisfactorily from an Irish perspective, then the Irish economy may face increased overheating pressures. However, if the nature of Brexit results in a significant and adverse shock for the domestic economy then a stimulatory budget may be required.”

 

BORDER PROPOSALS

On 30 September, RTÉ News reported that the UK has proposed the use of ‘customs clearance centres’ on both sides of the border in Ireland as part of its plan for alternative arrangements to replace the backstop.  RTÉ reported that the proposals were contained in the ‘non-papers’ presented by UK Government officials during recent discussions with European Commission officials and that these ‘centres’ would be located 5-10 miles back from the border.

Tony Connelly from RTÉ tweeted that the proposals include that:

  • Goods moving north and south of the border would need to be declared and cleared in "customs clearance sites" on either side. The goods then moving through the 10m-20m zone would be monitored in real time, possibly via mobile phone GPS data or tracking devices fitted to vehicles
  • Exporters and importers would be required to either opt for a straightforward pre-lodged customs declaration or to use the transit option, whereby transparency is ensured through a financial bond
  • Authorised Economic Operators (AEOs) could reduce the level of checks at "customs clearance sites" or on premises, but smaller traders would have to comply with the new rules.
  • Use of real time tracking of goods and freight traffic once the goods have left the "customs clearance site".
  • An electronic notification would be sent to inform the customs authority that the consignment has crossed the border.
  • Tracking would be via GPS, possibly either through mobile phone data or a tracking device attached to vehicles

 

Speaking to the BBC, the Prime Minister Boris Johnson said that the "reality" of Brexit is there will need to be customs checks on the island of Ireland after the UK leaves the EU but rejected claims that would effectively mean a hard border, in the form of a series of customs posts set five or 10 miles back.

Mr Johnson said "They are not talking about the proposals that we are actually going to be tabling. They are talking about some stuff that went in previously."

It’s understood that the Government has prepared the legal text of an updated Brexit deal and would be making more plans public in the coming days.

Speaking on 1 October, the Prime Minister’s Spokesperson said “Nothing we are proposing involves checks or controls at the border …. We will be giving proposals to EU in coming days”

An EU Commission spokeswoman says Michel Barnier has briefed the EU Parliament and Member States on the outline of the UK’s technical non-papers but that the documents themselves have been not been shared with anyone outside of his negotiating team, in line with the UK’s wishes.

 

PRIME MINISTER REVEALS BORDER PROPOSALS

On 2 October, the Government published a policy paper ‘UK proposals for a new Protocol on Ireland/Northern Ireland’ along with a letter to the President of the European Commission Jean-Claude Juncker.

The Government proposes:

  • Creation of an all-Ireland regulatory zone for all goods (including agri-food) in order to eliminate the need for regulatory checks for trade in goods between Northern Ireland and the Republic of Ireland.  Northern Ireland would thus align with EU rules.
  • Agri-food goods entering Northern Ireland from Great Britain would do so via a Border Inspection Post or Designated Point of Entry as required by EU law, building on provisions that already exist to support the Single Epidemiological Unit (SEU). They would be subject to identity and documentary checks and physical examination by UK authorities as required by the relevant EU rules.
  • Northern Ireland would also align with all relevant EU rules relating to the placing on the market of manufactured goods. Regulatory checks would be implemented at the boundary of the all-Ireland zone, as appropriate and in line with relevant EU law, minimising the potential for non-compliance. This would be supplemented by on-the-market surveillance, as it is now.
  • To support this system of controls at the boundary of the zone, traders moving goods from Great Britain to Northern Ireland would need to notify the relevant authorities before entering Northern Ireland, in order to provide the necessary information to undertake the appropriate checks, and, where appropriate, prevent the entry of products prohibited or restricted by EU rules.
  • A new notification requirement will be needed to provide basic information to support the regulatory controls, covering:
    1. the nature of the goods in the consignment, and where they were produced;
    2. the people sending (exporting) and receiving (importing) the goods; and
    3. where the goods will depart and arrive.
  • The precise arrangements for ensuring the effective operation of this approach would be decided through the Joint Committee before the end of the transition period.
    1. The regulatory checks and controls taking place on goods entering Northern Ireland from Great Britain would not apply when goods enter Ireland from Northern Ireland. The UK would not apply corresponding checks or controls on goods entering Northern Ireland from Ireland.
    2. Third country goods arriving in Northern Ireland would, as now and in the rest of the UK, be subject to full customs processes, as well as the required regulatory checks.
  • This all-Ireland regulatory zone would be subject to the consent of the Northern Ireland Assembly and Executive where the institutions would give consent during the transition period (i.e. up to end of December 2020) for these all-island regulations to enter into force.  Thereafter, the institutions would vote every four years.  If consent is withheld, the arrangements will not enter into force or will lapse (as the case may be) after one year, and arrangements will default to existing rules.
  • The whole of the UK will leave the EU Customs Union and the border between Northern Ireland and the Republic of Ireland will be a customs border.  All customs processes in Northern Ireland to ensure compliance with UK and EU customs regimes being done electronically, with any physical checks being done a traders’ premises or other points on the supply chain.
    1. All goods movements between Northern Ireland and Ireland will be notified using a declaration; regulatory checks will not apply. Goods would be imported or exported between Northern Ireland and Ireland under either i) a transit mechanism or ii) a prior declaration mechanism. Goods moved under either mechanism would be under customs supervision by one or other customs authority from the point at which they are declared for export until they are cleared by customs in the territory of import for free circulation or placed under an alternative customs procedure. Cooperation between relevant authorities would help to ensure compliance.
    2. Under either process the relevant customs authority will be notified that the consignment has entered their customs territory. Either mechanism would link the movement of the consignment over the border with the information provided to the customs authority, which could identify any goods requiring customs interventions. Physical checks – which would continue to be required only on a very small proportion of movements based on risk-assessment – could then take place at traders’ premises or other designated locations which could be located anywhere in Ireland or Northern Ireland.
    3. Special provision would be made for small traders to ensure that requirements on them could be simplified. These simplifications should respect the nature of economic activity between Northern Ireland and Ireland and should ensure that any special circumstances regarding the purpose for which goods move between customs territories, the nature of the goods, or the nature of the trader carrying out the movement, are all taken into account. Some small traders should be exempted from processes and from paying duty altogether. These measures would need to be carefully designed so they target the traders most in need of support while continuing to ensure compliance as far as possible.
    4. We also propose that the UK and EU should take an approach which ensures that goods movements between Ireland and Northern Ireland should not require entry or exit summary declarations
  • Promises a "New Deal for Northern Ireland", with financial commitments to help manage the changes.

The Prime Minister spoke by telephone to Taoiseach Leo Varadkar on 2 October.  The Irish Government issued a subsequent statement;

“The Taoiseach said the proposals do not fully meet the agreed objectives of the backstop.

However, he indicated that he would study them in further detail, and would consult with the EU institutions, including the Task Force and our EU partners.

The Taoiseach expects to speak with European Council President Donald Tusk, European Commission President Jean-Claude Juncker, and with other EU heads of Government over the coming days.

This will include the Swedish and Danish Prime Ministers, with whom the Taoiseach has bilateral meetings on Thursday and Friday in their capitals.

The Taoiseach said he wants to see a deal agreed and ratified, and will continue to work in unity with our EU partners to this end.

The Taoiseach and the Prime Minister agreed they would speak again next week.”

The Prime Minister made a statement to the House of Commons on 3 October on his plans:

“………………………….. While, as I stand here today, we are some way from a resolution, it is to the credit of our European friends that they have accepted the need to address these issues. And I welcome the constructive calls I have had over the last twenty-four hours including with President Juncker, Chancellor Merkel, Taoiseach Varadkar and the statement from President Juncker that the Commission will now examine the legal text objectively.

The essence of our new proposal is a new Protocol on Ireland and Northern Ireland consisting of five elements.

In the first place all our actions are based on our shared determination to sustain the Belfast (Good Friday) Agreement, the fundamental basis of governance in Northern Ireland the protection of which is the highest priority of all.

And from this follows the second principle – namely that we shall of course uphold all the longstanding areas of co-operation between the UK and our friends in Ireland including the rights of all those living in Northern Ireland, North/South co-operation and the Common Travel Area, which predates both the Good Friday Agreement and the European Union itself.

Third, we propose the potential creation of a regulatory zone on the island of Ireland covering all goods, including agri-food. For as long as it exists, this zone would eliminate all regulatory checks for trade in goods between Ireland and Northern Ireland.

But fourth, unlike the so-called backstop, such a regulatory zone would be sustained with the consent of the people of Northern Ireland, as expressed through the Assembly and Executive. They will give their consent during the transition period as a condition for these arrangements entering into force. Thereafter, the Assembly will vote again every four years - and if consent were withheld, these arrangements would then lapse after one year.

Fifth, it has always been a point of principle for this government that at the end of the transition period, the UK should leave the EU Customs Union whole and entire restoring sovereign control over our trade policy and opening the way for free trade deals with all our friends around the world …………………………..

………. Indeed, I have already given a guarantee that the UK government will never conduct checks at the border and we believe that the EU should do the same, so there is absolute clarity on that point.

Instead under this new Protocol all customs checks between Northern Ireland and Ireland would take place either electronically or in the small number of cases where physical checks would be necessary, they would happen at traders’ premises or other points in the supply chain………..

…………………. I do not for one moment resile from the fact that we have shown great flexibility in the interests of reaching an accommodation with our European friends and achieving the resolution for which we all yearn.

If our European neighbours choose not to show a corresponding willingness to reach a deal then we shall have to leave on 31st October without an agreement and we are ready to do so.

But that outcome would be a failure of statecraft for which all parties would be held responsible………”

Following the PM’s statement, Conservative MP Damien Green asked “Can the Prime Minister assure me that the customs proposals for the Irish border do not involve the construction of any new physical infrastructure, whether at the border or anywhere else?”

The Prime Minister responded “…..I can tell him: absolutely not—the proposals we are putting forward do not involve physical infrastructure at or near the border or indeed at any other place.”

Chief Constable of the Police Service of Northern Ireland Simon Byrne spoke to the Prime Minister via video link on the plans for the border

"We were face-to-face on a video call for over half an hour," he says. "It was a very open conversation trying to tell him we saw that it was nigh on impossible to try and police over 300 crossings with the amount of police officers we had.

"It was a candid conversation, he was responsive to what we said and at the end of the day, how it landed and what he thought... you're going to have to ask him."

Speaking at a press conference following a meeting with Swedish Prime Minister Stefan Löfven, Taoiseach Leo Varadkar said that he "certainly welcomes" the plans from Boris Johnson as the EU "now has written proposals" to work on but said that they "do fall short in a number of aspects".

He says any consent mechanism in Northern Ireland must be "reflective of the views of whole of the population, and not give any one party a veto".

Mr Varadkar says he was "reassured" by comments made by Mr Johnson that there would be no physical infrastructure at the Irish border - but says it is "in contradiction to the papers presented".

The Irish PM also says the EU "needs to explore in much more detail the customs proposals".

 

Reacting to the UK proposals, the European Parliament Brexit Steering Group (BSG) issued a statement:

"The BSG does not find these last minute proposals of the UK government of 2 October, in their current form, represent a basis for an agreement to which the European Parliament could give consent. The proposals do not address the real issues that need to be resolved, namely the all - island economy, the full respect of the Good Friday Agreement and the integrity of the Single Market.

While we remain open to workable, legally operable and serious solutions, the UK’s proposals fall short and represent a significant movement away from joint commitments and objectives.

In particular, concern was expressed about three aspects of the proposals.

First, the UK proposals on customs and on regulatory aspects explicitly provide for infrastructure, controls and checks but are unclear as to exactly where and how these would be carried out. Any form of controls and checks in and around the border would signify the end of frictionless trade and as such would harm the all-island economy as well as represent a serious risk to the peace process, and could imply a serious risk for consumers and businesses. The proposals tabled by the UK Government thus breach a range of fundamental principles and red lines passed in the resolutions of this house. At the same time, such controls would not be sufficient to guarantee the protection of EU consumers and businesses in all circumstances, thereby potentially leaving the EU with a significant hole in its Single Market.

Second, the UK proposals would operationally only be worked out in detail by the EU and the UK, or in the UK unilaterally, during the fourteen-month transition period. This does not provide the necessary certainty or fulfil the agreed principles in the Withdrawal Agreement. This would mean the European Parliament would have to give consent to the Protocol without knowing its full implications, nor having any guarantee as to its legal operation. This is unacceptable.

Third, the right of consent being offered to the Northern Irish Assembly effectively makes an agreement contingent, uncertain, provisional and unilateral decision, instead of the safety net provided for by the backstop. Furthermore, the Northern Irish Assembly has not sat for nearly three years and it is questionable whether it would be able to reconvene and take on the responsibility for an international treaty of this nature.

In summary, the BSG has grave concerns about the UK proposal, as tabled. Safeguarding peace and stability on the island of Ireland, protection of citizens and EU’s legal order has to be the main focus of any deal. The UK proposals do not match even remotely what was agreed as a sufficient compromise in the backstop.

The European Parliament remains open to explore all proposals, but these need to be credible, legally operable, and in practise have the same effect as the compromises found in the Withdrawal Agreement. "

The European Parliament must sign off on any Withdrawal Agreement between UK and EU

 

PROROGATION PLANS

On 2 October, Downing Street released a press statement that the Prime Minister intends to request that the current session of Parliament be prorogued from the evening of Tuesday 8 October, with a Queen’s Speech on Monday 14 October.

“The Government will seek to strengthen public services, improve infrastructure and connectivity across the country, tackle crime and enhance the integrity of the criminal justice system, while protecting our natural environment for the long-term.

The Prime Minister has today set out a fair and reasonable compromise for replacing the backstop and securing the United Kingdom’s exit from the European Union with a deal. If a deal can be agreed at European Council, a central feature of the legislative programme will be to introduce a Withdrawal Agreement Bill and move at pace to secure its passage before 31 October.

These timings would mean Parliament is prorogued for the shortest time possible to enable all the necessary logistical preparations for a State Opening to be undertaken, including those done by the House Authorities.

The Prime Minister, Boris Johnson said:

I want to deliver on the people’s priorities.

Through a Queen’s Speech, the Government will set out its plans for the NHS, schools, tackling crime, investing in infrastructure and building a strong economy. We will get Brexit done on 31 October and continue delivering on these vital issues.”

 

BREXIT LEGISLATION

The UK Government prepared a suite of legislation in preparation for EU exit.

Acts already made:

Legislation which has been introduced but not yet completed passage:

Not yet introduced:

 

WHAT’S NEXT?

 

Sept 29 – Oct 2: Conservative Party conference

Sept 30 – Oct 8: Hearings of the Commissioners-designate before the European Parliament

Oct 4 – 6: Green Party conference

Oct 4 – 5: Plaid Cymru conference

Oct 13 – 15: Scottish National Party conference

Oct 14: State opening of Parliament and Queen’s speech

October 17-18: European Council meeting

October 31: UK leaves the EU (if the Withdrawal Agreement isn’t ratified before this date)

November 1: New President of the European Commission takes up office

December 1: New President of EU Council takes up office

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