Brexit & Beyond newsletter

20 May 2024

Welcome to the 20 May 2024 Brexit & Beyond newsletter

Ministers took questions in the chamber about post-Brexit funding, the implementation of the Windsor Framework, and veterinary medicines. The Northern Ireland High Court ruled that certain provisions of the Illegal Migration Act breach the UK Government’s obligations under Article 2 of the Windsor Framework. The EU-UK Joint Committee met on 16 May and adopted decisions on the implementation of the Windsor Framework. The Partnership Council also met on 16 May. The Windsor Framework Democratic Scrutiny Committee continues its scrutiny of EU laws which may apply in Northern Ireland. The Electronic Travel Authorisation (ETA) Scheme was discussed at the Committee for the Economy.

This week, the Commons European Scrutiny Committee will hear evidence from Foreign Secretary Lord Cameron on issues including the Windsor Framework, security around Gibraltar, and the EU-UK border.

• Plenary business
• The Windsor Framework and the Illegal Migration Act
• EU-UK Joint Committee meeting and decisions
• Windsor Framework Democratic Scrutiny Committee
• Impact of the Electronic Travel Authorisation (ETA) scheme
• Other news

Plenary business

The deputy First Minister took questions from MLAs in the chamber on 13 May.

Replacement EU funding

Diane Forsythe noted that the UK's Shared Prosperity Fund is due to end in March 2025, and “a huge number of organisations in the sector are due to place staff on protective notice from December 2024, if no clarity is sought for them”. Deputy First Minister Emma Little-Pengelly said, “We have already made representations on the issue. We need the highest level of certainty that we can get. We do not want to get to the stage where we are looking over the cliff edge again without certainty on quantum or what the projects or schemes will look like. The relevant Northern Ireland Departments and the sector should be part of the process of developing phase 2 of the Shared Prosperity Fund to ensure that it is fit for purpose here.” The Committee for Finance recently heard evidence on this issue.

Deputy First Minister Emma Little-Pengelly in the chamber

Democratic Scrutiny Committee

Deputy Chairperson of the Democratic Scrutiny Committee David Brooks told the deputy First Minister that the Committee has experienced “some pushback from Departments on issues that are technically reserved matters but for which the expertise in this place and in Northern Ireland sits with Departments”. Little-Pengelly said, “It is absolutely right and proper that all Departments should do their best to support the Windsor Framework Democratic Scrutiny Committee in its work, because it is in the interests of all people in Northern Ireland to make sure that the rules, regulations and laws that impact on us are properly scrutinised and that the right advice is given.”

Windsor Framework Implementation Regulations

Asked about avian flu and bovine TB, Minister for Agriculture, Environment and Rural Affairs Andrew Muir told MLAs that the implementation of the requirements of animal health law in Northern Ireland, including those relating to disease prevention, “no longer sits within [his] ministerial responsibilities.” He added, “I believe that I should have direction and control over those areas. I have been engaging with the UK Government around this. The Minister of State, Steve Baker, has informed me that his desire is that those regulations will cover only internal market and trade issues. I made it clear that we need a resolution so that I can fully answer your questions about that and the other areas that I cited.” Muir stated that he wants to take forward actions on bovine TB but now this does not sit within his area of responsibility. The Minister has laid in the Assembly Library a list of relevant diseases. Muir told MLAs, “The situation will not be tenable for much longer and needs to be rectified.”

Minister for Agriculture, Environment and Rural Affairs Andrew Muir in the chamber

The Safeguarding the Union Command Paper contained a UK Government commitment to take direct powers to direct certain public authorities in relation to the implementation and observance of the Windsor Framework (Paragraph 96).  This commitment was given effect through the Windsor Framework (Implementation) Regulations 2024 which came into force on 12 April. The regulations mean Northern Ireland departments will be required to exercise their functions subject to the direction and control of the Secretary of State (instead of an NI Minister), if this relates to observing or implementing the relevant provisions of the Windsor Framework, and commitments in the Command Paper. These include “the requirement to eliminate any physical checks when goods move within the UK internal market system, except those conducted by UK authorities and required as part of a risk-based or intelligence-led approach to tackling criminality, abuse of the scheme, smuggling and disease risks”.

In March, Minister for State in the NI Office Steve Baker stated, “The Government first briefed the political parties in Northern Ireland on our intention to take forward such legislation last September, building on the powers taken in January 2023 to deliver sanitary and phytosanitary facilities for goods going to the EU through the ‘red lane’. This approach reflects the fact that these are obligations which arose from an agreement reached by the Government, and which ultimately fall to the Government to uphold. It would not be appropriate to leave them solely to the Northern Ireland Executive to discharge.” Minister Muir has provided a list of 19 legislative acts which are no longer under his direction and control and are now matters for his department to implement under the direction and control of the relevant Secretary of State.

Veterinary medicines

Both the deputy First Minister and Minister for Agriculture took questions on veterinary medicines. Under the Windsor Framework, Northern Ireland will have to follow EU rules on veterinary medicines. There is currently a grace period in place, which was extended until the end of 2025. Emma Little-Pengelly said this area is now “subject to the direction and control of the Secretary of State, as provided for in regulation 3 of the Windsor Framework (Implementation) Regulations 2024”. She said, “We call on the United Kingdom Government to work closely with us in urging the European Union to find a resolution. If it does not find one, we call on the UK Government to operate the mechanisms under the Command Paper and take the unilateral action to which they have committed to ensure that Northern Ireland is not left behind when the transition period ends.”

Minister Muir said while it is primarily a matter for the UK Government to negotiate with the EU, he has been “making representations” on the matter. He said, “it is important that we get a resolution, but it has to be mutually agreed. We need to find a durable and mutually agreed resolution. My personal preference is for a veterinary agreement and alignment between the UK and the EU on the matter.”

Tomorrow MLAs will debate a private members’ motion on veterinary medicines.

The Windsor Framework and the Illegal Migration Act

On 13 May, the Northern Ireland High Court ruled that certain provisions of the Illegal Migration Act (IMA) breach the UK’s obligations under Article 2(1) of the Windsor Framework. The Court has disapplied these in Northern Ireland [Summary judgement]. The court also found a number of the provisions to be incompatible with the European Convention on Human Rights.

The case was brought by the Northern Ireland Human Rights Commission [NIHRC response to the judgement]. The Commission identified a series of provisions in the IMA that fall short of the minimum standards required by relevant EU Directives and said, “Had the UK remained in the EU, such reductions in rights would have been unlawful. Therefore, this constitutes a diminution in rights, contrary to Windsor Framework Article 2.” Under Article 2 of the Windsor Framework, 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.

Reactions

On 14 May, the High Court Judgement was raised as a matter of the day in the chamber by Jim Allister. He said the judgement is of “immense constitutional significance. It was constitutionally significant in that an Act of the sovereign Parliament of the United Kingdom was overruled and set aside because of the supremacy of EU law, which is bestowed by article 2 of the sovereignty-grabbing protocol, subjecting Northern Ireland alone in the United Kingdom to its supremacy, its laws and its rights.” David Brooks (DUP) said his party “has long warned about how the law will apply in Northern Ireland. It is imperative that immigration policy apply equally across every part of the United Kingdom.” Sinéad Ennis (Sinn Féin) said the judgement “proves that the British Government's Illegal Migration Act is unworkable and is not compliant with human rights.” Paula Bradshaw (Alliance) said, “It is encouraging that the Windsor Framework and, behind it, the Good Friday Agreement are protecting Northern Ireland from the UK Government's horrible immigration legislation over the course of this Parliament.”

Doug Beattie (UUP) commented that the Windsor Framework “did not get rid of the Irish Sea border. Two years of boycott did not get rid of the Irish Sea border. 'Safeguarding the Union' did not get rid of the Irish Sea border. Paragraph 46 of that document is completely incorrect in what it states. That document should never have been signed up to.” In Paragraph 46 of the Command Paper the Government states, “The Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. This includes important areas like immigration.”

UK Government position

The judgement was debated in the Commons on 14 May. UK Minister for Legal Migration and the Border Tom Pursglove stated, “We continue to believe that our policy is lawful, that our approach is compatible with international law and, specifically, that the Illegal Migration Act proposals are compatible with article 2 of the Windsor Framework. The Government will take steps to defend their position, including through an appeal. We have consistently made it clear that the rights commitments in the Belfast/Good Friday Agreement should be interpreted as they were always intended and not expanded to cover issues such as illegal migration.”

RTÉ’s Tony Connelly reports on the reaction from Irish Finance Minister Michael McGrath, who said, “There are potential consequences for Ireland as well, which we will now engage with our partners on and work through over the period ahead.”

Professor Colin Murray of Newcastle Law School has published his analysis of the judgement. Open University Professor Simon Usherwood has published an explainer on Article 2.

In related matters, last week the Northern Ireland Affairs Committee heard evidence on the implications of any potential UK withdrawal from the European Convention on Human Rights (ECHR) for Northern Ireland.  Alyson Kilpatrick, Chief Commissioner of the Northern Ireland Human Rights Commission, was among the witnesses.

EU-UK Joint Committee meeting and decisions

The EU-UK Joint Committee met on 16 May. The Committee oversees the implementation and application of the Withdrawal Agreement - read more on the Brexit & Beyond website. A joint statement has been published. The co-chairs European Commission Executive Vice-President Maroš Šefčovič and Secretary of State for Foreign, Commonwealth and Development Affairs Lord Cameron welcomed the restoration of the political institutions in Northern Ireland. The EU and UK “noted the progress made in the implementation of the Windsor Framework, which has already delivered significant benefits for people and businesses in Northern Ireland, across many areas”. They also discussed “a number of outstanding challenges and upcoming milestones, and agreed that intensive work should continue with renewed efforts and commitment to ensure the full implementation of all the elements of the Windsor Framework in a faithful and timely way”. See our website for upcoming dates relating to the Windsor Framework.

Joint Committee co-chairs Secretary of State for Foreign, Commonwealth and Development Affairs Lord Cameron and European Commission Executive Vice-President Maroš Šefčovič at the meeting in Brussels | Source: EC - Audiovisual Service

The Joint Committee adopted a decision to change the Windsor Framework to allow NI businesses to benefit more from UK trade deals and allow tariff-free imports of certain agri-food products, such as New Zealand lamb. Minister of State for the Northern Ireland Office Steve Baker says, “This unique arrangement will mean NI importers will be able to benefit from UK Free Trade Agreements, further cementing Northern Ireland’s place in the UK.”

The Joint Committee also adopted a decision to add Regulation (EU) 2023/2419 on the labelling of organic pet food to Annex 2 to the Windsor Framework. Before the UK can agree with the EU in the Joint Committee that a new EU law should apply in NI, the Northern Ireland Assembly must indicate cross-community support for the new law to be added to the Framework by passing an ‘applicability motion’. The Assembly considered the EU regulation on organic pet food and agreed an applicability motion with cross-community support. It also considered an applicability motion on an EU regulation on the protection of geographical indications for craft and industrial products. This was not agreed with cross-community support. The BBC reports that it’s understood the meeting also discussed this and “the two sides will do more work on this issue…The UK is hoping to persuade the EU that existing measures will meet the intention of the new law.”

A meeting of the Partnership Council, which oversees the Trade and Cooperation Agreement (TCA), was also held on 16 May. Discussions included the UK’s Border Target Operating Model, fisheries, the UK’s association to Horizon Europe, and EU-UK energy cooperation.

Vice-President Šefčovič issued a statement and the EU and UK issued a joint statement on the progress of an agreement in respect of Gibraltar.

Windsor Framework Democratic Scrutiny Committee

The Windsor Framework Democratic Scrutiny Committee heard evidence from officials at the Department for Infrastructure on EU Regulation 2024/1257 on type approval of motor vehicles and engines and of systems, components and separate technical units intended for such vehicles, with respect to their emissions and battery durability. The regulation, known as ‘Euro 7’ aims to reduce road transport emissions and support the transition towards clean mobility. The European Commission predicts the rules will reduce the health and environmental impacts of pollution from road vehicles. The department’s written submission sets out its assessment of the regulation. EU type approval applies to Northern Ireland but not to Great Britain. Officials explained that there is a possibility that GB could set less stringent limits than the EU. However, the Department for Transport (DFT) proposes to mitigate the potential divergence by allowing Euro 7 to be accepted for GB approvals. The Committee heard that the UK Government wishes to move towards zero emissions at the tailpipe by 2035, “so the direction of travel is exactly the same”.

The UK DFT assess that the application of the EU regulation “would not have a significant negative impact on everyday life of communities in Northern Ireland.” Officials stated that not applying Euro 7 would mean that new vehicles for Northern Ireland consumers would need to be retested, as Euro 6 would continue to apply. The market in Northern Ireland for that would be “tiny” and would potentially mean additional costs and testing for Northern Ireland. Northern Ireland would also miss out on the health benefits: the EU’s assessment is that while the cost of implementing the new standards will be approximately £40 billion, the health benefits expected are £160 billion, “so there is seen as being a net benefit through health, but a cost to the industry,” officials said.

The committee decided not to hold an inquiry but will seek further information from car manufacturers and the UK Government.

The Committee also considered EU Regulation 2024/1252 establishing a framework for ensuring a secure and sustainable supply of critical raw materials. The Committee had not received information on the regulation from the Executive or the UK Government for its meeting. Steve Aiken said it is “very unsatisfactory…we're been asked to make a decision on something we have no information for.” The Committee decided to hold an inquiry and is conducting a public consultation, which closes on 26 May.

Departmental officials appeared before the Committee again as part of its inquiry on EU Regulation 2024/1157 on shipments of waste. The committee will consider responses to its public consultation next week.

The committee considered survey responses on EU regulation 2024/1143 on geographical indications for wine, spirit drinks and agricultural products, and will consider a draft report next week.

Impact of the Electronic Travel Authorisation (ETA) scheme

On 15 May, the Committee for the Economy heard evidence from departmental officials and representatives of Tourism NI and Tourism Ireland. Witnesses were asked about the impact of the Electronic Travel Authorisation (ETA) Scheme, which will require all individuals (except British and Irish citizens) to seek permission to travel to the UK in advance. This will also apply to tourists arriving into the Republic of Ireland who wish to visit Northern Ireland.

The Committee heard that the Minister for the Economy has written to Tom Pursglove, the Minister for Legal Migration at the Home Office, and has sought a meeting to discuss the problems and potential solutions. An official stated, “there's no doubt it will have a significant impact” and they have heard from stakeholders that it will be “an extra burden and that could lead to Northern Ireland being ‘deprogrammed’ on potential tours.” John McGrillen, CEO of Tourism NI, said there has been a lot of time and investment put into “convincing people that when they come to the island of Ireland that there's merit in traveling north”. The Committee heard that “anything that makes it more difficult…that additional hassle factor, does not encourage [tourists to come to Northern Ireland]”. Shane Clarke of Tourism Ireland stated that they have conducted research in France and Germany and found that the introduction of the ETA “would discourage a sizable proportion of people from wanting to travel to Northern Ireland.” He said currently there isn’t a huge awareness of the scheme and noted communications plans which are to be developed with the UK Home Office.

Other news

• On 15 May, the North South Ministerial Council Special EU Programmes meeting was held in Dublin. Minister for Finance Caoimhe Archibald and Junior Minister at the Executive Office Pam Cameron attended the meeting with Irish Minister for Public Expenditure, NDP Delivery and Reform Paschal Donohoe. They discussed the work of the Special EU Programmes Body (SEUPB).
• A report from the National Audit Office on ‘The UK border: Implementing an effective trade border’ states, “repeated delays in implementing controls have meant ongoing uncertainty and an increase in risk, and the government and border stakeholders have also incurred unnecessary costs.” The Government estimates it will cost at least £4.7 billion to implement new post-Brexit border arrangements. Regarding arrangements for moving goods GB-NI, the report states, “some details remain to be confirmed, including the operational implications of the Government’s recent Safeguarding the Union Command Paper. If NI is to benefit from its unique position, the UK Government must provide the clarity required to give businesses the confidence to invest in and trade with NI, and provide sufficient support to the Northern Ireland Civil Service to help it effectively enact its new responsibilities.”
• The BBC reports that Baroness Arlene Foster is set to be appointed Chairperson of Intertrade UK, envisaged in the UK Government’s Safeguarding the Union Command Paper.
• The Specialised Committee on Fisheries, which monitors the implementation and functioning of that part of the Trade and Cooperation Agreement, is meeting on 23 May.
• The Commons European Scrutiny Committee has published its latest report, which examines changes to the EU Emissions Trading System; energy cooperation under the EU-UK Trade and Cooperation Agreement; the UK’s working arrangement with Frontex; the EU’s Prüm II Regulation; and a proposed EU regulation on vehicle recycling.
• The Belfast Telegraph reports that “over 20 alleged drug dealers facing charges linked to the EncroChat hacking operation will argue the Windsor Framework renders evidence supplied by the French authorities inadmissible in Northern Ireland’s courts”.
• The BBC reports on a dispute between the EU and UK over the UK’s ban on fishing in the North Sea for sandeel, a favourite food of threatened seabird and marine species, including seals and puffins.
• The Centre for Cross Border Studies has submitted written evidence to the Lords European Affairs Committee’s inquiry on EU-UK data adequacy.
• On 15 May, the European Scrutiny Committee heard evidence on Retained EU Law.