Brexit & Beyond newsletter

27 February 2023

Welcome to the 27 February 2023 Brexit & Beyond newsletter

The UK and EU have agreed a deal on the Protocol on Ireland/Northern Ireland. The Prime Minister has called it a “decisive breakthrough” and says they have “removed any sense of a border in the Irish Sea”. Last week, Queen’s University published its latest poll on the Protocol. Concerns continue to be raised about the UK Government’s Electric Travel Authorisation scheme. The Scottish and Welsh Parliaments have voiced their objections to the UK Government’s Retained EU Law Bill.

A “decisive breakthrough” on the Protocol

This afternoon, Prime Minister Rishi Sunak and European Commission President Ursula von der Leyen announced they have reached a deal on the Protocol on Ireland/Northern Ireland - the ‘Windsor Framework’. The Prime Minister says the agreement has “removed any sense of a border in the Irish Sea” and “protected Northern Ireland’s place in the Union”. The legal texts of the deal have now been published, and the PM is set make a statement in the House of Commons at 6.30pm. Sunak confirmed that Parliament will have a vote on the agreement in due course.

Key aspects of the agreement:

• There will be a green lane for goods moving from Great Britain to Northern Ireland, where "burdensome customs bureaucracy will be scrapped". Goods at risk of moving into the EU will move through a red lane.
• Products available in GB supermarkets will be available in NI, including sausages. Chilled meats are usually prohibited from import into the EU single market.
• No paperwork will be required for GB-NI parcels and online shopping.
• The legal text of the Protocol has been amended so the UK can set VAT and excise duties for the whole of the UK.
• Trees, plants and seed potatoes will be able to be imported from GB to NI. Certain plants and crops were prohibited from entry, or required lengthy certification when moving from GB to NI under the Protocol’s rules.
• Treatments and documentary requirements for pets moving from GB to NI will be removed.

The UK Government has published various explainers on the agreement in principle.

Regarding concerns about the democratic deficit in the Protocol and EU law applying in NI, Sunak said, only the “minimum necessary” EU law would apply NI to avoid a hard border. The EU and UK have agreed that the Northern Ireland Assembly can “pull an emergency brake” on EU legislative changes which would apply in NI. Sunak said this so-called ‘Stormont Brake’ is a “powerful new safeguard” and would give the UK Government a veto. Von der Leyen explained that this mechanism is based on the petition of concern in the Good Friday Agreement [as previously reported by BBC]. She said it was intended to be an emergency mechanism and said there would be greater consultation on EU laws and UK planned regulatory changes to avoid the need to resort to the new mechanism.

Prime Minister Rishi Sunak with the President of the European Commission Ursula von der Leyen in Windsor Guildhall | Source: Simon Walker / No 10 Downing Street

Von der Leyen stated that the European Court of Justice will have the final say on single market issues. The EU leader said the agreement included strong safeguards to protect the EU single market such as data sharing, labels, and enforcement procedures. She called the results of the months-long negotiation “extraordinary”.

Von der Leyen said she is now ready to start immediate work for the UK to join Horizon Europe, the EU’s €95.5 billion research and innovation programme. The EU had not signed off on the UK’s participation, linking it with the ongoing dispute over the Protocol.

The substance of the Windsor Framework is to be agreed at the next meeting of the Withdrawal Agreement Joint Committee which is expected next month. 

The Government has confirmed it will not proceed with the Northern Ireland Protocol Bill and the EU will not proceed with the seven legal actions it has brought against the UK regarding the implementation of various aspects of the Withdrawal Agreement and Protocol.

The PM also announced that UK-approved medicines will be automatically available in NI. Last week, in a 30-page letter, the House of Lords Sub-Committee on the Protocol wrote to the Foreign Secretary to urge the EU and UK to address the outstanding issues around medicines supply to NI under the Protocol.

Reactions to the deal

The Prime Minister said parties in Northern Ireland would want to take time to consider the detail of the deal. NI Office Minister Steve Baker and prominent Eurosceptic said he thinks the PM has “pulled a blinder” and believes this deal will be “good enough” for unionists. Taoiseach Leo Varadkar said the deal is the result of a “long and difficult process”. Tánaiste Micheál Martin believes “[unionists]“will see in [the deal] a genuine response to their genuine concerns” and said the deal “will provide the certainty and stability that Northern Ireland needs in order to move forward.”

In a statement, DUP leader Sir Jeffrey Donaldson said, “In broad terms it is clear that significant progress has been secured across a number of areas whilst also recognising there remain key issues of concern…The DUP will want to study the detail of what has been published today as well as examining the detail of any and all underpinning legal texts.” He stated, “Our judgement and our principled position in opposing the Protocol in Parliament and at Stormont has been vindicated.” Speaking to media in Parliament Buildings following the announcement, Sinn Féin Vice-President Michelle O’Neill welcomed the deal and said the protections in the Protocol “remain necessary” and that the party would consider the details.

Stephen Farry, deputy leader of the Alliance party said he is “very encouraged” by the conclusion of a deal, adding, “The preservation of dual market access and reduction of barriers are the key tests for us. We will be studying the Agreement in that context.” UUP leader Doug Beattie said, “We will study what has been released in detail with the attention and careful consideration that it deserves…We will form our opinion based on whether we believe this is a good deal for Northern Ireland and one which protects our place within the United Kingdom’s Internal Market.” The SDLP also stated they will study the legal text of the agreement in detail. Party leader Colum Eastwood remarked, “Political leaders must approach this moment in good faith and with a common determination to restore our Assembly and Executive.” TUV leader Jim Allister said he looked forward to seeing the legal texts, asking “what parts of the Protocol have been superseded?” He said it was clear that under the deal NI stays in the EU single market for goods and that there would be increasing divergence between NI and GB.

The Business Brexit Working Group said the deal is “an important step in securing the stability and certainty businesses have been seeking.” They note that while many issues will have been resolved, other may remain or emerge and call for the UK and EU to continue with a “constructive solutions-focussed approach as businesses adjust”. The British Irish Chamber of Commerce welcomed the deal, stating, “We expect that given today’s announcement, the UK government will immediately withdraw the extremely damaging Northern Ireland Protocol Bill from passage through Parliament and urgently listen to the concerns of businesses around the Retained EU Law Bill, which threatens a regulatory nightmare for businesses.”

Polling on the Protocol

Last week, Queen’s University Belfast published its seventh poll on the views of voters in Northern Ireland on the Protocol. Similar to previous polls, it found that a small majority (53%) see the Protocol, as it currently operates with grace periods, as “an appropriate means for managing the effects of Brexit on Northern Ireland”. On the democratic consent vote on the Protocol to be held by the end of 2024, 51% of respondents wish MLAs to vote for the continued application of the Protocol, while 41% want MLAs to vote against.

58% of voters have concerns about the impact of the Protocol: customs declarations for parcels was the issue of most concern, followed by restrictions on plants and seeds, and the jurisdiction of the EU Court of Justice.

Overall assessment of the current impact of the Protocol | Source: QUB

The survey found that the Protocol wasn’t the top policy concern for most voters compared to other issues – the health service and the cost of living were of more importance to respondents.

A clear majority (73%) of respondents agreed that the UK and the EU “should commit to regular consultation with Northern Ireland stakeholders and political representatives on how the Protocol is implemented.” This figure includes majorities from supporters of all Northern Ireland political parties, except for the TUV. 64% agreed that the “Northern Ireland Executive should be fully functioning regardless of what happens with the Protocol. “

The poll was conducted 3-6 February – before the mounting speculation in the media about an imminent deal between the EU and UK on the Protocol. Professors David Phinnemore and Katy Hayward write that the poll “provides few grounds for optimism that the contestation around the Protocol will quickly dissipate” and conclude that a deal on the Protocol is only “one step on the long road of improving the post-Brexit relationship” between the UK and EU.

UK’s Electronic Travel Authorisation impact on cross-border travel

The Centre for Cross Border Studies (CCBS) has highlighted concerns about the UK Government’s Electronic Travel Authorisation (ETA) system. The UK Government’s new system, set to be fully operational by the end of 2024, would require non-nationals to seek pre-entry clearance when crossing the border into Northern Ireland. The CCBS has called for an exemption for those who have legal residency in Ireland, given that it would require them to seek clearance for cross-border journeys for childcare, shopping, or healthcare.

The Northern Ireland Tourism Alliance (NITA) has also raised concerns about the implications for overseas visitors who enter NI via the Republic of Ireland. Dr Joanne Stuart, chief executive of NITA, said, “We don’t want anything that would create a barrier or make people think twice about coming up to Northern Ireland.”

The Commons Northern Ireland Affairs Committee recently received a response from the UK Minister for Immigration which states the UK and Irish Governments have held “detailed discussions” about a UK-Ireland data-sharing solution “to determine if a person is a lawful resident of Ireland and could, therefore, potentially be exempt from the ETA requirement.” The Committee noted evidence that 62% of non-British citizens who arrive in Northern Ireland have travelled from the Republic of Ireland.

Retained EU Law Bill

On Thursday, the Scottish Parliament voted to withhold consent for the Retained EU Law Bill. The devolved administrations can indicate their consent for Westminster to legislate on a devolved matter by agreeing a legislative consent motion (LCM), as per the Sewel Convention. During the debate Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture  highlighted the Scottish Government’s concerns about the Bill’s “cliff-edge sunset provision” (under which the majority of retained EU law would expire at the end of this year unless preserved). He said, “The inclusion of such a provision is a deeply irresponsible way to manage the statute book.” Robertson added that Bill risks deregulation and divergence and would give powers for UK ministers to act in areas of devolved competence “without the consent of the Scottish ministers and without the consent of the Scottish Parliament”. He argued, “the only way to eradicate the dangers that are posed by the bill is for it to be scrapped.”

The Senedd Legislation, Justice and Constitution Committee laid its report on the Retained EU Law Bill on 22 February. The Committee “cannot overestimate” its concerns about the effect the Bill could have on “the certainty and quality of law as it applies in Wales”. The committee says the Bill enables “an unacceptable power imbalance between executive and legislature” and calls the potential workload “unprecedented”. The committee notes the implications of the 2026 Senedd election conflicting with the extended sunset date of 23 June 2026.

The Telegraph reports on opposition to the Bill in the Lords, where it is currently at committee stage. Labour and the Liberal Democrats have joined forces to back an amendment which would allow the Commons and Lords to debate every EU law planned for repeal.

Other news

• The Office for the Internal Market (OIM) has published a report on the impact of a proposed regulation banning the sale of horticultural peat in England. The OIM finds that there are likely to be only modest changes to trade in peat across the UK as a result of the ban. Under the market access principle in the IMA, peat from Scotland, Wales and Northern Ireland could continue to be sold in England after the ban. It suggests the policy may lead retailers “to also stop stocking peat across all UK nations (not just England), reinforcing a broader move away from peat across the supply chain.” It notes the intention of the Welsh and Scottish Governments to end the sale of horticultural peat, and that the NI Department of Agriculture, Environment and Rural Affairs has consulted on a peatland strategy.
• The UK Government has published guidance about the EU’s extension of the transition period for the EU Medical Device Regulations. The changes will apply in Northern Ireland under the Protocol and the MHRA is considering the implications for the GB market.