Brexit & Beyond newsletter

11 March 2024

Welcome to the 11 March 2024 Brexit & Beyond newsletter

At the NI Assembly last week, the Committee for Agriculture, Environment and Rural Affairs heard evidence from Minister Andrew Muir and from officials on a range of issues, including the Windsor Framework, border controls, funding, and ‘assimilated’ (retained EU) law. The Windsor Framework Democratic Scrutiny Committee heard evidence from The Executive Office on proposed EU laws, which may apply in NI. In plenary, Article 2, PGI status for Irish Beef, and the Executive’s international strategy were discussed.

Today at the Assembly, the Minister for Agriculture, Environment and Rural Affairs will take questions in plenary. On Thursday, the Democratic Scrutiny Committee will hear evidence from the British Dental Association Northern Ireland on a proposed EU Mercury Regulation to phase out the use of dental amalgam, which is currently progressing through the European Parliament. The BDA has raised concerns about its implications for NI.


EU Exit and Agriculture, Environment and Rural Affairs

On Tuesday 5 March, the Committee for Agriculture, Environment and Rural Affairs heard evidence from the Minister for Agriculture, Environment and Rural Affairs Andrew Muir and Permanent Secretary of the Department (DAERA) Katrina Godfrey. Minister Muir sees the Windsor Framework as “a significant step forward in terms of enabling businesses in Northern Ireland to be able to operate” and is “quite keen that we use the opportunities that arise from that.” Last week, the Minister engaged with officials on veterinary medicines issues. The deadline for NI’s compliance with EU regulations (under the grace period currently in place) is December 2025 but Minister Muir said, “In reality, it's much before that”. He is engaging with stakeholders on potential solutions. The Lords Windsor Framework Sub-Committee will hear evidence on this issue from Minister Steve Baker and officials on Wednesday.

 Minister for Agriculture, Environment and Rural Affairs Andrew Muir

Minister for Agriculture, Environment and Rural Affairs Andrew Muir

Windsor Framework and ‘Safeguarding the Union’

The Minister emphasised, referring to the role of the Department in carrying out checks at NI’s points of entry, “there are legal obligations upon me but [his approach is] doing it in a proportionate manner which delivers for the people of Northern Ireland.” He was asked about UK Government commitments in the Safeguarding the Union command paper on removing checks on goods moving within the UK. Minister Muir stated, “We will uphold the law…my duty is to uphold the law and I will implement the law, but we do not seek to do that in a way which is disproportionate or overzealous; we do it in a way which is correctly in line with the law.” Questioned about the level of checks by Michelle McIlveen (DUP), Minister Muir restated, “There has been no desire to be overzealous”. He said, if there are concerns and issues, these should be brought to the Department. Godfrey added, “In most cases where I have seen concerns raised [about the level of checks], we have been able to trace them back to a lack of compliance. So we've been able to reconcile what happened to a load with the level of compliance it demonstrated…it is not in anybody's interest to do anything other than uphold the law.”

Minister Muir said, “I would say if the UK Government has a desire to ensure the smooth implementation of the Windsor Framework, they need to ensure that they properly pay for all the costs associated with that. So the ball’s in their court.” Godfrey explained the funding situation for the Department, stressing that the Windsor Framework “cuts across so many parts of the department”: it's not just agri-food and SPS checks, but also areas such as environment, chemicals, animal health, and packaging regulations. She said, “There are lots and lots of pieces of work that individual officials need to do to make sure that we continue to be compliant and…we constantly have to understand the risks of divergence so there's a lot of work across several parts of the department.” She added, “It seems intuitively right to me that this should be a separate allocated fund.”

Border control posts

Regarding the completion of border control posts in Northern Ireland (required to be in place by July 2025), Godfrey said the UK Department for Environment, Food and Rural Affairs (Defra) is leading and accountable for the construction. She said, “Our interest, of course, is in making sure that the facilities being built are operable by our staff, because it's our staff who will perform the competent authority requirements.” In response to a written question, the Minister states that the Department is required by law “to ensure a sufficient number of suitably qualified and experienced staff are available to perform official controls and other official activities efficiently and effectively at SPS Inspection Facilities”. Currently the Department employs 151.5 staff, to support the delivery of official controls and activities at SPS Inspection Facilities.

EU funding

Minister Muir also commented on the impact of EU Exit on rural development funding and support. Godfrey noted that a specific measure in the PEACE PLUS programme concerns rural regeneration and socialisation. The EU and UK committed to continue the PEACE funding programme for Northern Ireland after Brexit - you can find out more on the website of the Special EU Programmes Body, which manages the funding.

Retained EU Law

On Thursday, the Committee heard from Departmental Officials in the Environment, Marine and Fisheries Group. The provisions of the Retained EU Law (REUL) Act were explained: almost 600 items of retained EU law were repealed at the end of 2023. The Act gives UK and devolved ministers powers to revoke, replace and reform retained EU laws more easily; it repealed directly effective EU law rights and obligations in UK law, ended the supremacy of EU law, and allows courts to depart from established EU case law. REUL has been renamed ‘assimilated law’. The Committee heard this was “a really large piece of work”, which all NI departments participated in, and there were “lots of discussions around how [they] take that forward and how [they] deal with Northern Ireland-specific effects.” Work is still ongoing, and an official said this year Defra has “really ambitious plans in this area”. She said the Department is working to make sure its views are “well represented and that any concerns are picked up.”

UK Secretary of State for Business and Trade Kemi Badenoch will give evidence to the Commons European Scrutiny Committee on this issue on Wednesday.


EU Exit matters in Plenary

In plenary on 4 March, Declan McAleer (Sinn Féin) welcomed the attainment of all-island protected geographical indication (PGI) status for Irish grass-fed beef within the EU. He said, “It is a fantastic example of North/South working in partnership to make the most of our unique access to the European Union for the benefit of everyone”. Minister Muir has also welcomed the development, saying, “The whole process has been an amazing success, not only by ensuring farmers North and South get the recognition they deserve, but in developing strong working relationships between government bodies North, South, East and West. I hope these relationships are further developed in any future all-island GI applications.”

At question time, deputy First Minister Emma Little-Pengelly was asked about work in developing diplomatic links with key international regions. She said the Executive is considering how a future international relations strategy will deliver its priorities, adding, “Improving our relationship with the EU, its institutions and its member states is an important focus. We will also work closely with the UK and Irish Governments, in their representations overseas, to boost opportunities.” Little-Pengelly also told MLAs that a date has been confirmed for the first meeting of the East-West Council, which will take place this month in Belfast.

Deputy First Minister Emma Little-Pengelly

Deputy First Minister Emma Little-Pengelly

Article 2

On 5 March, Jim Allister (TUV) spoke about the High Court’s judgement on the Legacy Act. He said, “The fact that it was struck down because of the primacy of the Protocol is of immense constitutional significance and brings home to those of us who care the subservience of the United Kingdom in respect of Northern Ireland to EU law.” The UK Government intends to appeal the High Court ruling, which found elements of the Legacy Act to be incompatible with Article 2 of the Windsor Framework and articles 2 and 3 of the European Convention on Human Rights. Anurag Deb, PhD researcher at Queens University Belfast, and Colin Murray, Professor of Law at Newcastle Law School, have written about the recent ruling and Article 2 provisions.

The Chair of the Lords Windsor Framework Sub-Committee has written to the UK Government about the Illegal Migration Act, saying, “The failure of the Government to respond to letters from this Committee promptly has unacceptably constrained the ability of the Committee (and the House) to scrutinise the issues raised around this legislation and Article 2 of the Windsor Framework.”


Democratic Scrutiny Committee

On Thursday 7 March, officials from The Executive Office (TEO) and the Department for the Economy gave evidence to the Windsor Framework Democratic Scrutiny Committee on current proposed EU legislation relevant to Northern Ireland. Deputy Secretary for International Relations and EU Exit Tom Reid told the Committee: “What really stands out when you look at that overview [of proposed EU legislation which may apply in NI] is that the volume and the breadth of the policy areas is quite significant.” He noted that the European Parliament is coming to the end of its mandate and that is associated with an increase in legislative activity.

Reid said from TEO’s perspective, “the snapshot [of EU laws] indicates a legislative horizon that covers a very wide policy span, from vehicle standards to medical devices, and all kinds of things in between”. He added, “It also indicates an emphasis on the highly technical” e.g. regulations on emissions from air conditioning systems and motor vehicles. He noted that some policy areas will be reserved, some devolved, and others mixed. He said the volume, policy expertise required, and timetable for this EU legislation “is outside of our control…all coincide to put additional pressure on capability and capacity across NICS [the NI Civil Service]”. Reid emphasised, “Early engagement with the EU's legislative process is absolutely critical”.

Kerry Curran from the Department for the Economy highlighted to the Committee EU legislation on the Carbon Border Adjustment Mechanism (CBAM), ecodesign and sustainable products, deforestation, and on critical raw materials and artificial intelligence. She said CBAM is “a major file that will be cross-cutting in its impact”. The Commons Library has published a research briefing on the CBAM.

Regarding the work of the Department in analysing regulations which may apply in NI, Curran said, “The issue isn't just about numbers of people sitting in seats to furnish this work, it's about the capability. [Many of the files] are areas, where in the past we haven't had anyone looking at them, because they've been a UKG competency.”

Members of the Committee also discussed with officials their systems and processes to standardise and provide coherent information to the committee, the coordination role of TEO in providing information to the Committee, and departments’ engagement with the UK Government and the EU.

On Thursday, the Committee will hear from the British Dental Association Northern Ireland, as part of an evidence gathering exercise on the EU’s proposed Mercury Regulation to phase out the use of dental amalgam.


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