Brexit & Beyond newsletter

8 January 2024

Welcome to the 8 January 2024 Brexit & Beyond newsletter

Happy New Year! Today’s newsletter contains a summary of Brexit developments in recent weeks and upcoming dates. The Lords Sub-Committee on the Windsor Framework has written to the Government raising concerns about the implications of regulatory divergence between Northern Ireland and Great Britain. 31 December marked a significant milestone for the interpretation of Retained EU Law in the UK. At the end of this month, the UK is set to introduce (repeatedly deferred) post-Brexit border checks on some animal, food, and plant products.


Regulatory divergence

On 19 December, the Lords Sub-Committee on the Windsor Framework (WF) wrote to the Foreign Secretary Lord Cameron following its inquiry into regulatory divergence and the Windsor Framework. Witnesses highlighted “potential opportunities…in relation to Northern Ireland’s access to both Great Britain and EU markets” under the Framework and the committee asks the Government how it will “remain mindful of Northern Ireland’s unique position in this regard when developing policy and regulations so that these benefits and opportunities can be fully realised for the people of Northern Ireland”.

The committee notes the implications of growing North-South divergence, which the Government states is “inherent” in the Windsor Framework. Witnesses have pointed out the “sheer complexity of the regulatory situation” in Northern Ireland. The committee sees “a clear opportunity for the Office for the Internal Market to monitor and mitigate some of the risks arising from regulatory divergence in Northern Ireland” but says there is currently little certainty about its role and mandate.

Furthermore, the committee is “concerned by the lack of transparency and the lack of involvement of key stakeholders” in some of the UK-EU Joint Consultative Working Group subgroups. The subgroups were established under the Windsor Framework to allow stakeholders to input into discussions on EU acts within the scope of the Framework.

The committee discussed the Stormont Brake with witnesses, and the possibility of ‘dual divergence’. (Joel Reland of the UK in a Changing Europe calls this issue ‘trivergence’: “What this refers to is the scenario where Northern Ireland diverges from the regulations of both the EU and UK – creating three separate sets of rules”.)  The committee asks how the Government will support sectors which rely on trading in the EU single market if the Stormont Brake is applied, and also notes concerns about the “high threshold” for triggering the Brake.

Joël Reland, Research Associate at the UK in a Changing Europe, previously giving evidence to the committeeJoël Reland, Research Associate at the UK in a Changing Europe, previously giving evidence to the committee | Source: UK Parliament

Finally, the committee emphasises that businesses adjusting to the new WF arrangements “should not be additionally burdened” in finding out how new or existing legislation is creating regulatory divergence, which may impact their business. It says it is “incumbent on the Government to provide somewhere for stakeholders to go to find out this information in an easily accessible and digestible format.” A response from the Government is expected by 15 March.


‘Assimilated law’

On 31 December 2023, almost 600 pieces of Retained EU Law (REUL) were repealed. The principle of supremacy of EU law ended and REUL will be known as ‘assimilated law’. By 22 January, the Government must publish and lay before Parliament its first report on REUL. This must include a summary of the data on the REUL dashboard, and progress and plans to revoke and reform REUL. These reports must be published every six months until June 2026.

The Commons Library has published a briefing on the new powers under the REUL Act, which gives UK ministers and devolved authorities broad powers to revoke, replace and reform REUL.

Meanwhile, the UK Government has launched a call for evidence on ‘smarter regulation’. Environment Secretary Steve Barclay has welcomed post-Brexit reform for the wine industry, saying “Our departure from the EU gives us the opportunity to review and scrap outdated and burdensome rules that have been holding back our wine sector.” Pints of wine can now be stocked on Britain’s shelves after Brexit. This will also be available in Northern Ireland through the ‘green lane’.


UK Border Controls

On 31 January, 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. The Guardian reports that Dutch flower growers are calling for the Government to delay the introduction of these checks, amid “significant concerns” about industry readiness for the changes. The Horticultural Trades Association chair, James Barnes said the number of steps to import a petunia from the EU to the UK had increased from 19 to 59 since Brexit.

For 'non-qualifying' goods moving from Ireland to GB, pre-notification requirements (except for low-risk plants and plant products) and full customs controls will be introduced. Health certification on imports of medium-risk animal products, plants, plant products and high-risk food and feed of non-animal origin will be introduced.


Other news

  • The Northern Ireland Human Rights Commission’s legal challenge against Secretary of State for the Home Department and Secretary of State for Northern Ireland over the Illegal Migration Act 2023 will be heard at the High Court in Belfast from 29 January. The NIHRC believes the Act breaches UK Government obligations under Article 2 of the Windsor Framework.
  • On 21 December, the Trade and Cooperation Agreement Partnership Council adopted a decision on electric vehicle rules of origin. This means that electric car manufacturers will not face tariffs of 10% this year; these will apply from 1 January 2027. The European Commission insists, “this is a one-off extension that cannot be prolonged.”
  • On 21 December, the UK and Switzerland signed an agreement on regulatory cooperation on financial services, on the basis of mutual recognition of domestic laws and regulations in certain sectors. The Government says the agreement is “only possible due to new freedoms granted to the UK following its exit from the European Union. The agreement will enhance the UK and Switzerland’s already thriving financial services relationship.” The UK is also negotiating an enhanced Free Trade Agreement with Switzerland.
  • The Government has concluded negotiations with the EU and Norway on 2024 fishing opportunities. It has reached agreement on over 80 total allowable catches (TACs), providing access to £700 million of UK fishing opportunities. Under the EU-UK Trade and Cooperation Agreement, 25% of the EU quota in UK waters is being transferred to the UK until 30 June 2026, and annually TACs are agreed for each fishing stock. The Government states “since leaving the EU, the UK has a larger share of many of the TACs set at these negotiations. It is estimated that the UK might have received around 630,000 tonnes of fishing opportunities if we were still an EU member state, in comparison to the 750,000 tonnes actually received. That is an estimated increase of 120,000 tonnes of fishing opportunities for the UK fleet in 2024. The UK’s shares in these stocks will continue to increase until the end of the 5½ year adjustment period.”
  • The Minister for Intergovernmental Relations Michael Gove has responded to a letter from the Inter-Parliamentary Forum. He states that any decision to report to legislatures on provisional Common Frameworks would require the agreement of UK and devolved ministers and the NI Executive is not in place to provide this. Common Frameworks are being developed in policy areas which were previously governed by EU law and which intersect with devolved competence. An evaluation of the Common Frameworks programme is expected to be published in the spring.
  • The Government has published its Q3 2023 report on Intergovernmental Relations.
  • The Government has issued guidance on Explanatory Memoranda (EMs), which includes advice if the legislation has interactions with Article 2 of the Windsor Framework (under which the Government committed 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 Department of Agriculture, Environment and Rural Affairs has extended the deadline for its consultation on new EU Batteries Regulations. A webinar on the regulations will be held on 12 January and the survey will close on 19 January.

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