Brexit & Beyond newsletter

4 September 2023

Welcome to the 4 September 2023 Brexit & Beyond newsletter

The UK Government has announced another delay to the introduction of checks on EU food imports. The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland has published a wide-ranging report on the Windsor Framework, which calls it an improvement, but emphasises that problems remain. The UK Government has published further guidance and legislation to implement the Framework. Today’s newsletter also includes a round-up of publications, events, and developments from over the summer months, including a meeting of the EU-UK Parliamentary Partnership Assembly in Brussels, moves to preserve or remove Retained EU Law, a report on Article 2, and funding from the Irish Government for NI students to take part in Erasmus.

 

Lords Sub-Committee report on the Windsor Framework

The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland published its report on the Windsor Framework (WF) in July. It concludes that the Framework is an improvement on the Protocol, but problems remain. It comments on the “technical and legal complexity” of the WF, and the difference in emphasis between the UK and EU. It states that, in some respects, in particular for the non-retail sector, the Windsor Framework will be “more burdensome than the Protocol”, given that various grace periods and derogations are currently in place. The committee asks the Government to respond to the concerns about the limited scope of the green lane: businesses have highlighted that the WF does not address issues with groupage or mixed loads and those moving multiple products from multiple consumers may be forced to use the red lane.

 The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland during its evidence session with the Foreign Secretary in May 2023

The Lords Sub-Committee on the Protocol on Ireland/Northern Ireland during its evidence session with the Foreign Secretary in May 2023 | Source: © House of Lords 2023 / photography by Annabel Moeller

 

For businesses, their “number one concern” remains regulatory divergence (either between GB and NI or between NI and Ireland/the EU) - there is an “underlying fear that Northern Ireland will find itself in a ‘no-man’s land’ between Great Britain and the EU (including Ireland), placing the competitiveness of Northern Ireland firms and their complex supply chains in jeopardy”.  

The report notes that farming and horticultural sectors have welcomed the easements for plants, seeds, machinery and trees but a large number of species remain prohibited from moving GB-NI. Plants and trees will not be available for consumers to buy online, only via registered operators such as garden centres.

The committee highlights the outstanding issue of the supply of veterinary medicines to NI (currently under a grace period until the end of 2025). It calls for the UK and the EU to engage urgently together with industry stakeholders “to agree a sustainable and mutually agreed solution that protects both the supply of veterinary medicines from the UK and Northern Ireland’s access to the EU Single Market for goods”. [More below on the EU’s view on this]

The committee states that in light of political tensions over the continued application of EU law in Northern Ireland, “the obligation on the UK and the EU is for them both to be fully transparent with Northern Ireland stakeholders over the consequences of what they have agreed under the Windsor Framework”.

The committee makes a series of recommendations on the Stormont Brake, including that the Government clarify the process by which it would decide whether the tests have been met for the use of the Brake; and whether EU tertiary legislation is within its scope. The committee highlights concerns from witnesses about “potential political and economic ramifications” of the Brake: “There were also warnings that this instability could create economic uncertainty for businesses and investors, as well as potentially provoking remedial action by the EU, with potential implications for Northern Ireland’s access to the Single Market for goods.”

The committee has written separately to the Foreign Secretary asking for clarity about the new labelling requirements, after guidance was published. Initially only certain products moving into Northern Ireland through the green lane will need to meet the labelling requirements. The Government then intends to introduce these requirements for England, Scotland and Wales in 2024.

 

Implementing the Windsor Framework

In July, the Government published further guidance on new requirements for labelling of medicines, which will commence at the start of 2025.

The Department for Environment Food and Rural Affairs has issued guidance on the ‘Northern Ireland Retail Movement Scheme (NIRMS)’ - the new arrangements for moving food products from GB to NI. It also published guidance on groupage and mixed loads: “If the grouped load contains a mix of NIRMS compliant goods and consignments which are not eligible for the NIRMS, the lorry as a whole cannot benefit from all the facilitations under the NIRMS…However the subsection of goods which are compliant with NIRMS requirements will still benefit from moving under a general certificate”.

The Welsh Government has notified a Senedd committee about planned UK Government legislation to implement the Framework, the Windsor Framework (Retail Movement Scheme: Public Health, Marketing and Organic Product Standards and Miscellaneous Provisions) Regulations 2023. The Minister states that the legislation is required “to ensure that goods moved under the [Retail Movement] scheme are subject to GB standards, and the relevant authorities in NI are able to enforce against non-compliance with GB standards.”

The Postal Packets (Miscellaneous Amendments) Regulations 2023 were debated in the Commons on 17 July. This instrument gives HMRC and Border Force powers to enforce the new arrangements for parcels GB-NI e.g. “to, seize, detain or inspect goods, both B2B and consumer, sent from GB to NI in order to ensure that they do not circumvent legislative requirements applied under the Windsor Framework” and “to allow appropriate powers to detect where GB to NI postal packets do not meet existing requirements such as those for restricted goods”.

 

Government delays checks on EU food imports

The UK Government has published its final Border Target Operating Model, which sets out its approach to post-Brexit border controls on imports to GB. It has again delayed the introduction of SPS checks (on food, plants, and animal produce) on imports to Great Britain from the EU by three months. None of the additional checks and controls will apply to imports to Northern Ireland from the EU. The Government says this delay is in response to concerns from industry. It states that the impact on food inflation of the Border Target Operating Model is estimated to be less than 0.2% across three years.

The Government’s publication also outlines the timeline for the introduction of new post-Brexit checks on goods from Ireland, and its plans to phase in controls on ‘non-qualifying’ goods from the island of Ireland. ‘Qualifying goods’ refers to goods from Northern Ireland, which qualify for ‘unfettered access’ when moving from Northern Ireland to the rest of the UK. The Government has reiterated its commitment to ’unfettered access’, and states this will be “enshrined and further strengthened in domestic legislation, avoiding burdens for Northern Irish goods on both direct Northern Ireland-Great Britain and indirect Northern Ireland-Ireland-Great Britain routes”. The Government will also strengthen the definition of a ‘Qualifying Northern Ireland Good’ for food and feed products: these will need to be “owned or processed in Northern Ireland by a Northern Ireland registered or approved food or feed business” in order to qualify. Otherwise, this category includes “any good that is or has been present in Northern Ireland without being subject to customs supervision, restriction or control or Northern Ireland processed products.” The Government states, “This approach will entrench a significant competitive advantage for Northern Irish businesses on the island of Ireland, reflecting Northern Ireland’s integral place in the United Kingdom’s internal market.”

Timeline

  • 31 January 2024: UK border controls: The UK Government will introduce export health certificates and phytosanitary certificates for medium-risk animal products and plant and plant products imported to GB from the EU. For 'non-qualifying' goods moving from Northern Ireland or Ireland to GB, pre-notification requirements (except for low-risk plants and plant products) and full customs controls will be introduced. Export Health Certificates and Phytosanitary Certificates will be required for Irish medium-risk animal products, plant and plant products moving directly from Ireland to GB ports.
  • 30 April 2024: UK border controls: The UK Government will introduce documentary checks and physical and identity checks for medium-risk animal products, plant and plant products imported to Great Britain from the EU.
  • From 31 October 2024: UK border controls: The UK Government will introduce Safety and Security declarations for EU imports. A reduced dataset for imports will be introduced. For 'non-qualifying' goods moving from Northern Ireland or Ireland to GB, documentary and risk-based identity and physical checks on medium-risk animal products, plants, plant products and high-risk food and feed of non-animal origin from the EU will be introduced. The Government will confirm the date for the commencement of physical checks on non-qualifying goods in Autumn 2023.

 

EU-UK Parliamentary Partnership Assembly

The EU-UK Parliamentary Partnership Assembly held its third meeting in Brussels on 3-4 July. DUP MP Sir Jeffrey Donaldson and Baroness Margaret Ritchie attended the PPA as part of the UK Parliament’s delegation. Baroness Ritchie and Sir Jeffrey Donaldson both spoke in the plenary sessions.  MLAs Gordon Lyons (DUP) and Cathal Boylan (Sinn Féin) attended from the NI Assembly as observers, along with observers from the Senedd and Scottish Parliament. Further details and meeting documents for the PPA can be found here, including the issues discussed in breakout sessions. The next meeting of the PPA will be held on 4-5 December in London.

 European Commission Vice-President Maroš Šefčovič (L) and UK Foreign Secretary James Cleverly (R) addressing the PPA, with Co-Chairs MEP Nathalie Loiseau and Sir Oliver Heald MP

European Commission Vice-President Maroš Šefčovič (L) and UK Foreign Secretary James Cleverly (R) addressing the PPA, with Co-Chairs MEP Nathalie Loiseau and Sir Oliver Heald MP | Source: European Union 2023 - EP

The PPA can make recommendations to the Partnership Council, which oversees the Trade and Cooperation Agreement, and made a recommendation on EU-UK common efforts to support Ukraine.

Later in July, the European Parliament’s delegation to the PPA, led by PPA Co-Chair Nathalie Loiseau, advocated for a ‘one-stop shop’ in Belfast  “this EU office would bring together, under the same roof and/or on a single platform, all the necessary expertise that people and business in Northern Ireland need to unlock the full potential of the new arrangements set out in the Windsor Framework.”

Veterinary medicines

European Commission Vice-President Maroš Šefčovič said they had discussed veterinary medicines in great detail and agreed a three-year period for adjustment: “I think that is quite an ample time to adjust, to adapt to the new situation” - when EU rules on veterinary medicines moving from GB to NI will apply. He emphasised that the island of Ireland is a one epidemiological unit – “this is the approach which was very much framing our discussion”. Groups have warned that NI could lose access to 51% of veterinary medicines it currently receives as the “scale and cost of meeting these changes [e.g. batch testing requirements and marketing authorisation holder requirements]…is likely to mean that companies will look to withdraw products from the NI market.”

 

Erasmus for NI students

In July, the Irish Minister for Further and Higher Education announced the Irish Government has allocated €2 million to higher education institutions in Northern Ireland so students in NI can access the EU’s student mobility scheme, Erasmus+. Minister Harris stated, “This is a permanent commitment, and will be in place for as long as students in Northern Ireland wish to avail of this option or an alternative mobility model emerges.” The Irish Government committed to put in place arrangements so that students in NI educational institutions will continue to have access to the Erasmus scheme, which the UK chose not to take part in after Brexit. Students will have to register with an Irish higher education institution temporarily in order to take part, and will be funded by the Irish Government. This provision applies regardless of whether the NI citizen holds an Irish passport.

 

Commissions report on Article 2

In July 2023, the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) published their annual report 2022-23 on Article 2. Under Article 2 of the Protocol, the UK Government committed to ensuring that there would be “no diminution of rights, safeguards or equality of opportunity” (as set out in the Good Friday Agreement) as a result of the UK leaving the EU. The Commissions are concerned about the very short timeframe between the publication of the draft regulations to implement the Stormont Brake and their coming into force, stating, “there has been very limited time for effective scrutiny by Parliament…[and they are] concerned that the new mechanism could inhibit changes in NI where these EU laws are amended in ways that could benefit equality groups”. The NIHRC and ECNI say the Windsor Framework Democratic Scrutiny Committee should engage with them and equality and human rights groups in NI in relation to changed or amended EU law.

 Geraldine McGahey, Chief Commissioner of the Equality Commission for Northern Ireland, and Alyson Kilpatrick, Chief Commissioner of the Northern Ireland Human Rights Commission with European Commission Vice-President Maroš Šefčovič on his previous visit to Northern Ireland

Geraldine McGahey, Chief Commissioner of the Equality Commission for Northern Ireland, and Alyson Kilpatrick, Chief Commissioner of the Northern Ireland Human Rights Commission with European Commission Vice-President Maroš Šefčovič on his previous visit to Northern Ireland | Source: EC - Audiovisual Service

The Commissions suggest the creation of an Article 2 ‘structured sub-group’ within the Joint Consultative Working Group, which is where the UK is notified of EU legislation which may apply to Northern Ireland.

The changes in the Windsor Framework regarding medicines supply to NI, and pet travel GB-NI, are welcomed. The Commissions will monitor the impact of new regime for movement of goods on the ability of Muslim and Jewish communities to access food products and ritual items.

The Commissions raise concerns about potential racial profiling arising from the Electronic Travel Authorisation Scheme. The NIHRC recommends that all journeys to NI from Ireland should be exempt.

The report sets out a series of recommendations on parliamentary scrutiny and compliance with Article 2. When changes are made to Retained EU Law (REUL), it recommends that the relevant UK or NI Minister confirm that an assessment for compliance with the commitment in Article 2 has been made. The Commissions also recommend that the NI Assembly amend its Standing Orders to ensure Explanatory Memoranda for bills include what consideration has been given to equality and human rights.

This month, the Northern Ireland Human Rights Commission will launch a video series explaining its role (and that of the Equality Commission) in protecting human rights and equality post-Brexit. They hope that the videos will raise awareness of the Article 2 commitment and “highlight the need for its implementation in the policy making and legislative processes both in the Assembly and Westminster”. The videos will be available to view on the NIHRC Brexit webpage.

 

Retained EU Law

The Financial Times reports that the UK Government plans to bring forward secondary legislation to retain the right to equal pay for equal work, amid concerns that these protections in their current form would no longer be in effect at the end of this year, when the Retained EU Law Act removes the supremacy and direct effect of EU law. Professor Catherine Barnard explains the legal context.

On 29 August, the Government announced plans to remove EU laws on ‘nutrient neutrality’, which it says has delayed or blocked new housing developments. The laws currently stop housing developments in areas which could impact rivers, unless they are ‘nutrient neutral’. The legislation will be made through an amendment to the Levelling Up and Regeneration Bill.

The Lords Sub-Committee has written to the Minister for Business and Trade Kemi Badenoch requesting clarification on REUL and Northern Ireland, including Article 2, interpretative effects and restatement powers.

At the Parliamentary Partnership Assembly in July, European Commission Vice-President Maroš Šefčovič commented on the Retained EU Law Act saying, “EU concerns persist…while the UK of course has the possibility to further diverge from the EU, that may bring even more cost and would further deepen the barriers to trade.” UK Foreign Secretary James Cleverly said the UK “is and will always be a high standards country” and “if there is divergence, it’s not divergence for divergence’s sake”.

 

 

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