Brexit & Beyond newsletter

15 April 2024

Welcome to the 15 April 2024 Brexit & Beyond newsletter

In plenary last week, First Minister Michelle O’Neill took questions on the meeting of the North/South Ministerial Council, and scrutiny of EU legislation. The Minister of Finance gave an update on replacement EU funding and the PEACE PLUS fund, while concerns about meeting the costs of implementing the Windsor Framework were raised by the Chair of the Agriculture, Environment and Rural Affairs Committee. The Windsor Framework Democratic Scrutiny Committee is considering various EU laws which may apply in NI, and heard oral evidence on a new EU regulation on organic pet food. The East-West Council met for the first time on 26 March in London. UK Secretary of State for Environment, Food and Rural Affairs Steve Barclay has commented on the Government’s intention to apply the ‘Not for EU’ labelling requirements across the UK. The UK Government has announced a common user charge rate for imports entering GB through the Port of Dover and the Eurotunnel from 30 April 2024.

This week at the Assembly, the Committee for The Executive Office will hear evidence from the Chief Commissioners of the Equality Commission and the Human Rights Commission on the Dedicated Mechanism, which oversees the UK Government’s commitment in Article 2, to ensure that there is “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 Windsor Framework Democratic Scrutiny Committee will hear evidence from the World Alliance for Mercury-Free Dentistry on a proposed EU regulation to ban the use of dental amalgam from January 2025.


EU Exit issues in plenary

The Windsor Framework (Implementation) Regulations 2024

On 8 April, TUV leader Jim Allister made a statement on the Windsor Framework (Implementation) Regulations 2024 which came into force on 12 April. The law gives the UK Government powers to issue statutory guidance about the arrangements for the implementation of the Windsor Framework and confers powers on Government Ministers so they can do anything that a Northern Ireland Minister could do for the purpose of observing or implementing the relevant provisions of the Windsor Framework. Allister said the regulations “pull the teeth of the Assembly and its Windsor Framework Committee by removing the right to call for papers and to call Ministers and persons. That means that proper scrutiny is impossible and the Windsor Framework Committee is in danger of becoming a mere sham as a result. In legislating for the Windsor Framework Committee, much was made of its scrutiny powers by those who advocated it.”

Questions to the Executive Office

At questions to the Executive Office, First Minister Michelle O’Neill told MLAs, “We used our engagements in Washington [around St Patrick’s Day] to deliver a clear message that we are an attractive investment opportunity for global companies because of our talented workforce, dual market access with the EU and innovative home-grown companies.”

 First Minister Michelle O’Neill

First Minister Michelle O’Neill

The North/South Ministerial Council (NSMC) met in Armagh on 8 April, for the first time since 2021. A joint communiqué was published. First Minister, Michelle O’Neill MLA, and the deputy First Minister, Emma Little-Pengelly MLA, jointly chaired the meeting, and all departmental ministers from the NI Executive attended. Then Taoiseach Leo Varadkar TD, Tánaiste Micheál Martin, and various ministers from the Government of Ireland attended. Michelle O’Neill said the meeting “was very much a positive statement on all the areas of collaboration that we have.” She said the Economy Ministers and the Enterprise Ministers from both jurisdictions talked about “opportunities to grow the all-island economy and the economies across our islands. There are huge opportunities for us to work collaboratively.”

The First Minister was asked about pre-emptive and proactive scrutiny of EU legislation. She pointed to the new Democratic Scrutiny Committee, adding, “This is a new arrangement for us all, and we are working our way through it...It is important that we work our way through those matters as they come before us, but we do not want to tie ourselves up constantly on those issues. Clearly, however, where there are issues of significance that we want to discuss, we have the forum now and should use it to discuss them.”

On minimising divergence, she said, “It is important that we work our way through that in a pragmatic sense and that we take the needs of business into account. If Brexit is going to tell us anything, it is that, if we do not listen to the needs of people in industry who are challenged every day by the implications of the outworking of all that, we are not learning lessons. I would like to think that we can take a very pragmatic approach to how we move forward. Will we always agree? That is yet to be tested, but let us work our way through it, with the intention of trying to do the right thing by the business community, which we are all trying to help prosper and grow. Ultimately, that helps our whole economy and our people to prosper.”

Replacement EU funding

On Tuesday 9 April, the Minister of Finance Caoimhe Archibald took questions on the Shared Prosperity Fund (SPF). She said the British Government’s position on whether they will continue funding the Shared Prosperity Fund beyond March 2025 is “not yet clear”. She noted that the previous Finance Minister and the Executive argued that replacement EU funds should be delivered by local Departments and not by the UK Government. “However, my Department has worked closely with the Department for the Economy (DfE) to secure funding from the Shared Prosperity Fund through commissions from DLUHC (UK Department for Levelling Up, Housing and Communities) to DfE and its arm's-length bodies. Funding worth £17 million has been secured via that route,” she said.

 Minister of Finance Caoimhe Archibald

Minister of Finance Caoimhe Archibald

Archibald went on to explain the SPF “fell far short” of what was delivered by EU funding through the European Social Fund and the European Regional Development Fund: “The Shared Prosperity Fund in totality was £127 million over three years. The equivalent EU structural funds averaged £65 million per annum, so there is, obviously, a considerable shortfall.”

She updated MLAs on the PEACE PLUS programme, which funds activities that promote peace and reconciliation and contribute to the cross-border economic and territorial development of Northern Ireland and the border region of Ireland. It is funded jointly by the UK Government, Irish Government, NI Executive, and European Commission. Archibald said that since December, approximately £207 million of PEACE PLUS funding has been awarded to successful project applications across several investment areas, including £143.5 million to upgrade the Belfast-Dublin Enterprise service, £40 million for youth programmes, £11.3 million for local community action plans, and £11.3 million for shared education programmes.

Funding the Windsor Framework

In a debate on the allocation of funds in NI (the Supply Resolution), Chair of the Committee for Agriculture, Environment and Rural Affairs Tom Elliot told MLAs that the Treasury has earmarked just over £28 million for non-ring-fenced resource expenditures for work on the Northern Ireland Protocol and Windsor Framework and at points of entry. The Committee has been advised that for the implementation of the Framework, “DAERA [the Department for Agriculture Environment and Rural Affairs] was awarded resource expenditure allocations totalling £28.2 million for 2023-24 under three funding streams.” Staff costs of £18.6 million are the greatest expense to operate the inspection regime, along with support staff both on- and off-site. Elliot stated that DAERA received only £4.7 million of its bid for £5.6 million for 2023-24 from Treasury. He added, “The UK Government's wish to ensure the smooth implementation of the Windsor Framework will not be possible if DAERA is not properly supported to implement it.”


Windsor Framework Democratic Scrutiny Committee

On 11 April, the Windsor Framework Democratic Scrutiny Committee heard evidence from officials in the Department for Agriculture, Environment and Rural Affairs (DAERA) on Regulation (EU) 2023/2419, a published new EU Act on the labelling of organic pet food. The Committee heard that organic production is a “highly regulated” and “complex” area. Officials explained the “very exacting” process for products to be certified to EU organic standards. There are around 150 organic producers and processors in NI: the biggest sectors are organic eggs and poultry followed by beef. Additionally, NI farmers are a significant producer of organic eggs supplying GB supermarkets.  While there are currently no organic pet food producers in NI, the Committee heard that one company in NI is exploring the production of organic pet food.

 The Windsor Framework Democratic Scrutiny Committee

The Windsor Framework Democratic Scrutiny Committee

DAERA officials explained that organics policy is formulated at UK level (the UK Department for Environment, Food and Rural Affairs is the competent authority), with input through the Common Framework. Read more about Common Frameworks. Under the Windsor Framework, EU standards for organics apply, while in Great Britain existing organics standards are in place in assimilated/retained EU law - the official noted there is potential for divergence over time. The EU’s 2007 regulation has been superseded by new EU regulation, which applies in NI and the EU. The official stated that there is currently a review being conducted at GB level on organics standards, and one of the intentions of this would be to minimise divergence.

EU regulation 2023/2419

The law being considered by the Committee would bring in flexibility on the amount of organic ingredients for a product to be certified as organic for pet food. Instead of 100%, this can be 95% - in line with the rules for organic food, and as is the case in GB. The official explained that this recognises the practicalities: sometimes it is not possible to get all ingredients to be organic. He stated, “Sometimes you get things that would create divergence, this would create alignment”. The law would align regulations in GB and the EU, otherwise future pet food producers in NI would have to produce their product to 100% organic ingredients. The official stated that if the regulation is not applied, “it would be disadvantageous”, concluding, “It's actually maybe quite unusual to get something that seems to be non-contentious…and no downsides.”  

The Committee heard that through liaison with the UK through the Common Framework, “there's a good opportunity…if there are issues of divergence then to try and work through them and avoid them.” Jonathan Buckley MLA asked about EU labelling requirements and if that restricted GB companies supplying NI. He was told that GB organics standards under assimilated or Retained EU law are recognised as equivalent. Officials noted that UKG’s Explanatory Memorandum notes the possibility of including this regulation in the NI Retail Movement Scheme.

The Speaker has written to inform all MLAs that a notification in relation to this new EU Act on organic pet food has been received. The deadline for tabling an applicability motion is 12 noon on 23rd April.  Read more about the applicability motion process.

The Committee also considered evidence on the replacement EU act COM/2024/52 regarding certain crops and seeds produced in Ukraine and Moldova. It decided to monitor its progress and to publish any interim reports it considers appropriate, pursuant to paragraph 7(1) of the Windsor Framework (Democratic Scrutiny) Regulations 2024.

EU regulation to ban dental amalgam

On Thursday, the Committee will hear evidence from the World Alliance for Mercury-Free Dentistry on a proposed EU regulation to ban the use of dental amalgam from January 2025.

In response to a written question, the Minister of Health states he is “very concerned about the practical implications of the revised law.” In 2022/23 dentists placed 201,000 amalgam fillings and approximately 31% of Health Service fillings are amalgam. Minister Swann is particularly concerned about “the impact on capacity, which is already struggling as a result of the pandemic, as non-amalgam fillings can take two or three times longer to place, depending on a number of factors”. The estimated cost is £3.6m to the Department per annum and £2.75m in total for patients. Minister Swann stated, “The law will come into effect in Northern Ireland in January 2025 without the successful deployment of the Stormont Brake. The Democratic Scrutiny Committee have an important role in assessing the significance of any impact of the changes in the law. My Department has briefed them of our concerns, will be providing further evidence to them in April 2024 and will continue to support them as much as possible.” Minister Swann states that the Department has established a NI Mercury Working Group “so that stakeholders from DoH, DAERA and others can monitor the passage of the new regulations, assess impacts, engage with the DSC process and mitigate risks as far as possible for patients and practices in Northern Ireland.”

➡️Read written evidence received by the Committee and further information on the proposed regulation.

➡️Read more on the Stormont Brake.


East-West Council inaugural meeting

The East-West Council met for the first time on 26 March in London. The new body was established following the Safeguarding the Union Command Paper, which led to the restoration of devolved government in Northern Ireland. The document states its initial economic missions will include economic inactivity, East-West investment and trade flows, improving international investment to NI, and bolstering East-West institutional connectivity.

In attendance were the Secretary of State for Levelling Up and Minister for Intergovernmental Relations Michael Gove, the Secretary of State for Northern Ireland Chris Heaton-Harris and Minister of State for Northern Ireland and the Cabinet Office Steve Baker, First Minister Michelle O’Neill, deputy First Minister Emma Little-Pengelly, the Minister for the Economy, Conor Murphy and Communities Minister, Gordon Lyons. Plans have been published for a new Enhanced Investment Zone in Northern Ireland and an award of £5.9 million from the UK Shared Prosperity Fund was announced.

First Minister of Northern Ireland Michelle O’Neill said, “It’s important that any funding aligns with our priorities to support workers, families and communities.” Deputy First Minister Emma Little-Pengelly said, “The council will play a vital role, enhancing the links between the NI Executive and the UK Government and providing a forum for us to work together on a wide range of issues across trade, transport, education and culture to deliver real benefits for everyone in Northern Ireland.”

The East-West Council is expected to meet regularly.


‘Not for EU’ labelling requirements

On 26 March, Secretary of State for Environment, Food and Rural Affairs Steve Barclay gave evidence to the Commons Environment, Food and Rural Affairs Committee. Chair of the Committee Robert Goodwill raised the ‘Not for EU’ labelling requirements, which, he said, have “been described by some people as a bit crazy”. The labelling of certain goods using the NI Retail Movement Scheme is required under the Windsor Framework. In its Command Paper on the Windsor Framework, and again in the Safeguarding the Union Command Paper, the UK Government set out its intention to apply this requirement across the UK “to remove any disincentive for suppliers, manufacturers or retailers to place goods on the market in Northern Ireland”. It published draft legislation and a consultation, which closed on 15 March.

Goodwill explained, “We have goods produced in the EU, to EU standards, which are going to have to be stamped ‘Not for EU’”. He added, “There is even some talk that legal action could be taken by some of those manufacturers”, noting this could create high costs which will be passed on to consumers. Minister Barclay noted the consultation and said part of this is “understanding with colleagues in the food manufacturing sector what the regulatory burdens and costs are that would be imposed. There is then an opportunity to look at the policy in that context and understand the original concern within the Windsor Framework, which was whether parts of the United Kingdom would not get goods—namely, Northern Ireland. The original intention of “Not for EU” labelling was addressing how one safeguards against that. Clearly, through the consultations, we want to look at what the costs to business are and what other proposals they might come forward with.” There is a 12-week period for the Government to consider and respond to the consultation.


Border Target Operating Model

The Department for Environment, Food and Rural Affairs (DEFRA) has announced new charges for imports entering Great Britain through the port of Dover and Eurotunnel from 30 April 2024 under the Border Target Operating Model (BTOM). The charge will apply to the commercial movement of animal products, plants, and plant products. The maximum charge will be £145. The IGD (Institute of Grocery Distribution) states, “The scale of change through transition to the BTOM is not to be underestimated. It is the most substantial change in trading since the EU exit, with the charges likely to have a greater financial impact on smaller suppliers. It is essential that businesses communicate with their suppliers across the EU and the rest of the world to ensure they are well prepared.” Read more on the changes in the guidance published by DEFRA.

Last month, the Head of Port Health and Public Protection at Dover District Council wrote to the Chair of the Commons EFRA Committee, raising concerns about the implementation of the new regime. She stated, “the proposed [Border Control Post] at Sevington will create an open door to enable unchecked Rest of World [products of animal origin] POAO goods to enter Dover and drive through it (which they haven’t been able to do before) and into GB uncontrolled”. The Guardian reports on the warning from the Dover Port Health Authority in the “excoriating” letter.


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