EU Law in UK 2021 (3) (Northern Ireland Brexit)

Exit day is next Friday.

The UK states the Transition Period will end on 31st December, and not a later date.

From 1 Jan 2021, whilst GB will not accept new EU law with implementation dates beyond the end of the Transition Period, Northern Ireland will stay aligned with those EU rules that are relevant to this Blog –

(1) legislation on product requirements

(2) sanitary rules for veterinary control (“SPS rules”)

(3) rules on agricultural production and marketing

Annex 2 to the (Withdrawal Treaty Northern Ireland/Ireland) Protocol lists the areas in which Northern Ireland will stay aligned with EU product/technical standards. The areas (relevant for our purposes) are as follows:

• goods—general provisions (including product safety);
• motor vehicles, including tractors;
• lifting appliances;
• gas appliances;
• pressure vessels;
• measuring instruments;
• construction products and machinery;
• electrical and radio equipment;
• textiles and footwear;
• cosmetics and toys;
• explosives and pyrotechnics;
• medicinal products;
• medical devices;
• substances of human origin;
• chemicals;
• pesticides and biocides;
• waste;
• environment and energy efficiency;
• marine equipment;
• food—general, hygiene, ingredients, contact material, and, other matters;
• animal feed—products and hygiene;
• Genetically Modified Organisms;
• live animals, germinal products and products of animal origin;
• plant reproductive material;
• sanitary and phytosanitary standards;
• ‘other’, including provisions relating to crude oil, tobacco, crystal glass, weapons.

This means the 2019 Single-Use Plastics Directive would be implemented in Northern Ireland, as it would be in Ireland.

Northern Ireland systems (subscribers’ EHS Legislation Registers & Checklists) are marked Brexit Transition, as are GB systems and GB variants (England, Scotland, Wales), but please note the Register layout will differ (to take account of the Protocol).

Please continue to follow this Blog, as further details emerge.

Withdrawal Agreement Bill (UK Brexit)

Exit day is 31st January (next Friday)

The Withdrawal Agreement Bill is now enacted as the European Union (Withdrawal Agreement) Act 2020 (the UK 2020 Act). It amends the European Union (Withdrawal) Act 2018, and will be added to the Brexit Law List, in the EHS Legislation Registers & Checklists of subscribers systems.

The Bill was enacted unaltered. I already Blog posted about the Bill contents before Christmas. The Bill Explanatory Notes are here.

In brief :

(1) The EU-UK Withdrawal Treaty is now ratified on the UK side.

(2) The EU-UK Withdrawal Treaty is here (ratification is proceeding on the EU side).

(3) The UK must set up an Independent Monitoring Authority to oversee the citizen rights elements of the Withdrawal Treaty.

(4) Both sides must set up the Joint Committee, and its sub-committees, to manage implementation of the Withdrawal Treaty.

(5) A transition period will commence from 1st February and last until 31st December 2020 (the UK 2020 Act terms this an Implementation Period).

(6) The Withdrawal Treaty provides for a single extension of the transition period for up to one or two years, the final date for application for this is end June.

The UK 2020 Act prevents the application. So for an application to be made, a further Act would need to be enacted on this point.

(7) The Northern Ireland/Ireland Protocol to the Withdrawal Treaty commences at the end of the transition period. I blog posted already about this Protocol. The UK 2020 Act stipulates the Protocol will be enacted by Regulations made under the UK 2020 Act.

(8) During the transition period, nothing substantive changes for business or citizens, and the Brexit Law statutory instrument changes to UK domestic law are delayed until 1st Jan 2021.

Hence, subscribers existing EHS Legislation & Registers are relabelled Brexit Transition.

(9) From 1st Feb, the UK is free to make trade deals, these trade deals could alter domestic law.

(10) From 1st Jan 2021, the Brexit Law statutory instrument changes to UK domestic law have legal effect. These freeze UK domestic law implementation of EU law as at 31st Dec 2020. In practice, however, the vast bulk of the UK Brexit Law was enacted in March/April 2019, and so unless reissued, it reflects EU law at that date.

Some EU law will need implementing in 2020.

I wrote separate Blog posts about EU Law in UK 2020 and EU Law in UK 2021.

During 2020, please expect to see further Blog posts on this topic.

Stormont Re-Start (Northern Ireland)

Following acceptance by political parties in Northern Ireland of The New Decade, New Approach Deal, Stormont will re-start after three years.

This means restoration to full operation of all the institutions of the Belfast (Good Friday) Agreement, including the Executive, the Assembly, the North South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference.

The following commitments in The New Decade, New Approach Deal are relevant for our purposes –

(1) The Executive will create an Executive Sub-Committee on Brexit.

The sub-committee will be chaired by the First Minister and deputy First Minister (or their nominated Ministerial representatives). The sub-committee will have at least one representative from each party on the Executive. As a matter of urgency the sub-committee will consider Brexit-related issues and will initiate, as soon as is practicable, an assessment of the impact of Brexit on the institutions and North/South and East/West relationships. The work of the sub-committee will be scrutinised by an Assembly Committee.

(2) The Executive will establish a central Translation Hub in the Department of Finance within three months of an agreement, in order to provide language translation services for the 9 Executive Departments, Arm’s Length Bodies, Local Government and Public Bodies.

The Assembly’s Standing Orders will also be amended to allow any person to conduct their business before the Assembly or an Assembly Committee through Irish or Ulster Scots. A simultaneous translation system will be made available in the Assembly to ensure that a person without Irish or Ulster Scots is not placed at a disadvantage.

(3) Representatives from the Northern Ireland Executive will be invited to be part of the UK delegation in any meetings of the UK-EU Specialised Committees or the Joint Committee discussing Northern Ireland specific matters which are also being attended by the Irish Government as part of the European Union’s delegation.

A powerful Joint Committee is established under the (international treaty) EU-UK Withdrawal Agreement to oversee that Agreement (for orderly UK exit from the EU). This Joint Committee will have Specialised Committees.

(4) The UK government will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The UK government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.

The Deal, alongside its two annexes, represents a possible outline of a Programme for Government. The parties agree to publish, within two weeks of the restoration of the institutions, the fuller details of an agreed Programme for Government. The parties recognise that the final Programme for Government will need to be agreed by the parties who form the Executive.

Within its first month of operation, the Executive will publish a legislative programme and indicative timescales which will complement the Programme for Government.

The following are relevant Deal commitments –

(1) The Executive will make its first priority to ensure the best possible Brexit outcome for citizens and the economy, reflecting the priorities set out in the letter of August 2016 from the First Minister and deputy First Minister to the Prime Minister.

(2) The Executive will invest urgently in wastewater infrastructure (the Living With Water Programme) which is at or nearing capacity in many places across Northern Ireland, including in Belfast.

(3) The Executive will tackle climate change with a new Energy Strategy to address the immediate and longer term impacts of climate change, and set targets and actions for transition to a zero carbon society.

The parties agree that, within 3 months, the new Executive will publish a comprehensive timetable for the development and delivery of this and other strategies necessary to achieve the outcomes in the Programme for Government.

(4) The Executive will introduce legislation and targets for reducing carbon emissions in line with the Paris Climate Change Accord.

Specifically, –

* the Executive will bring forward a Climate Change Act

* the Executive will establish an independent Environmental Protection Agency

* the Executive will create a plan to eliminate plastic pollution

* the RHI (Renewable Heat Initiative) will be closed down and replaced by a scheme that cuts carbon emissions.

Please also note the statements made by the Irish Government which also summarises the Brexit supports available to border regions.

The Deal document is here.

New Ireland/Northern Ireland Trade Arrangements (UK Brexit)

* Exit day is 31st January 2020

* Withdrawal Treaty transition period end is 31st December 2020

The revised UK-EU Withdrawal Treaty is expected to be ratified shortly by the UK enacting the UK’s EU (Withdrawal Agreement) Bill (currently in draft, known as the WAB). This will bring into force both the Exit day and the transition period.

The Withdrawal Treaty includes an Ireland/Northern Ireland Protocol of new trade arrangements that will apply to trade between the UK and the EU via the island of Ireland after the transition period.

* Ireland is an EU member state.

* Northern Ireland (NI) is part of the UK.

* The UK will be a third country vis a vis the EU after Exit day.

* The transition period stays (delays) the effect of Exit to give time for a trade deal to be put in place between the UK and the EU.

The Ireland/Northern Ireland Protocol makes a number of arrangements applicable to trade – that will apply after the transition period –

(1) Northern Ireland (NI) will operate inside the EU’s single market for industrial goods and agrifood, and comply with the EU’s Union Customs Code (whilst at the same time Norther Ireland will remain a legal part of the UK’s customs territory – the Protocol does not affect the UK customs territory).

(2) Goods entering NI from GB will be coming from a third country (the UK). Because those goods will be able to cross the land border into the EU’s single market, then customs procedures, tariffs, regulatory and agrifood checks will be required at the NI points of entry from GB: Warrenpoint, Belfast and Larne ports, and at airports – or more likely due to lack of infrastructure – at the GB ports of exit: Liverpool, etc, acting for the EU.

(3) Goods going in the opposite direction, Northern Ireland to GB, will require summary exit declarations under the EU’s Union Customs Code. The detail of this is not yet published.

(4) Beyond that, checks on goods going from Northern Ireland to GB will be up to the UK. It will have obligations under the WTO and may want to “protect” its own internal market from Irish-origin and therefore EU goods. In addition, new trade deals the UK agrees outside of the EU sphere may stipulate or necessitate the checking of some goods.

(5) Much depends on the detail of the new set-up –

Under the UK-EU Withdrawal Treaty , a specialised sub-committee, which forms part of the overall UK-EU Joint Committee to be created under the UK-EU Withdrawal Treaty to manage the new relationship between Britain and Europe, will agree certain aspects.

Note : the EU has acknowledged that Ireland will need to have a reserved seat – along with Spain and Cyprus, who have Protocols of their own on Gibraltar and the issue of the British military base on Cyprus in the UK-EU Withdrawal Treaty – at the Joint Committee table.

The sub-committee will agree a list of goods and categories of goods which are only destined for, or will be consumed in, Northern Ireland – in other words, where there is no obvious risk they will cross the border and enter the single market.

(6) Goods from GB to NI (dealt with by this sub-committee) may be exempted from tariffs altogether, or where tariffs are paid and where the EU tariff is higher than the UK one, importers will be able to apply for a rebate.

(7) Live animals will be checked coming in to NI from GB (as they are now), and agrifood products GB to NI will also need to comply with EU food safety requirements.

(8) The new UK-EU trade deal itself will also affect the work of the Joint Committee specialised sub-committee – if the UK-EU trade deal results in zero tariffs and quotas, then that will largely remove the need for tariff exemptions and rebates on goods moving from GB to Northern Ireland (traders would still have to do the paperwork to show that the consignments they are moving are actually tariff-free).

I will post further on this matter, when more information is available.

Environment Bill (the OEP) (England & UK part)

The Environment Bill creates a new Office for Environmental Protection (OEP), in England (with extension to Northern Ireland), I identified this in an earlier post.

This is necessary because Exiting the EU will leave a gap in governance.

The Bill –

– creates a statutory obligation on the Secretary of State, in exercising functions relating to the OEP, for example when making ministerial appointments to the OEP, to have regard to the independence of the OEP

[a Ministerial Statement will confirm the OEP will be given five year ring fenced indicative budget]

– covers climate change – the earlier exclusion of climate legislation is removed

– could consider in scope the spending of other departments on matters that related to environmental law (this is not however, the same, as the EU’s explicit incorporation of the environment in the policy making of all departments)

– envisages and facilitates (via information sharing) cooperation and mandates consultation (on transboundary areas) with any equivalent ‘devolved environmental body’ that is set up in Scotland and Wales

– extends to Northern Ireland (a Schedule in the Bill covers this) if so mandated by a restored Stormont – the Schedule provides for the Chair of such a NI extension to be selected by the Secretary of State for NI and DAERA (the environment department in NI)

– includes ‘environmental review’ enforcement powers in the Upper Tribunal

The OEP will launch to coincide with the IP (Implementation Period) completion day – 31st Dec 2020.

Scotland and Wales have made no announcements re their own bodies.

What is happening re the Withdrawal Agreement (Northern Ireland Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

UPDATE : the revised Ireland/Northern Ireland Protocol is here.

Open Europe has usefully done a track changes here.

At 1.08am this morning Tony Connolly (RTE News) tweeted the following re the Customs and Consent aspects RTE News understands is agreed between the EU and UK negotiators re a new Ireland Protocol to the EU-UK Withdrawal Agreement – [I have numbered]

[the EU and the UK are presently negotiating a revised Ireland Protocol (“backstop”) to the Withdrawal Agreement (the “deal”), in the hopes that it can be agreed by the UK Parliament where the original Withdrawal Agreement had failed before]

[remember : in the original Withdrawal Agreement, the Ireland Protocol (backstop to prevent a hard land border) would kick in once the Transition/Implementation period and any time extension to it had elapsed, and it would operate until a new Free Trade Deal (FTA) had been agreed between the EU and the UK.]

[remember : if the Withdrawal Agreement is agreed, and the necessary Withdrawal Implementation Bill is enacted in the UK, then the UK exits on 31st October, but stays aligned with the EU, accepting EU Law, and the operation of the Brexit Law is delayed, until December 2020 (the end of the Transition/Implementation Period unless it itself is extended)]

(1) Customs: Northern Ireland is legally in the UK’s customs territory, but would apply the EU’s rules and procedures on tariffs.

(2) Northern Ireland would also be aligned with the rules of the single market for industrial goods and agri-food products, meaning both regulatory and customs checks and controls on the Irish Sea for goods going from Great Britain to Northern Ireland.

(3) However, the extent of the controls would be reduced thanks to a series of tariff exemptions.

(4) There would be an automatic exemption for personal goods and possessions carried by those travelling back and forth between Northern Ireland and Great Britain, or, for example, if an individual was moving house.

(5) However, there would potentially be a broader category of goods and tradable products that could be exempt from tariffs and controls if there was no risk whatsoever of such goods entering EU’s single market across the land border.

(6) These categories of goods would be decided on in the future by the Joint Committee of EU and UK officials by consensus.

(7) The Joint Committee was established in the original Withdrawal Agreement as a way for both sides to manage the new arrangements.

(8) The intensity and scope of Irish Sea checks would be limited by a risk-analysis. However, the EU would, through the Joint Committee, have a veto over which kinds of goods would enjoy an exemption from tariffs and controls.

(9) There would also be a system of rebates for goods shipped from Great Britain to Northern Ireland if those goods attracted an EU tariff that was higher than the UK tariff.

(10) Consent: The mechanism essentially provides a qualified opt-out of the revised backstop arrangements via the NI Assembly.

(11) Northern Ireland would take on the new customs and regulatory regime for four years after the end of the transition period, which is due to conclude at the end of 2020.

[presumably the date of the start of this new customs and regulatory regime could be delayed by extending the transition period, the original Withdrawal Agreement allowed for the transition period to be extended as an alternative – Tony Connolly does not say] UPDATE – the option to extend the transition period is in the Withdrawal Agreement – deadline is 30 June 2020 for UK-EU Joint Committee to decide whether to extend transition beyond 31st December 2020.

(12) At that point Stormont would have to take a view as to whether or not to opt out of the new arrangements.

[Stormont is the Northern Ireland Assembly that has not met for 1,000 days, efforts are underway to restart it]

(13) If Stormont voted to opt out, then there would be a two year cooling off period, during which all sides would have to find an alternative way of complying with the Good Friday Agreement and avoiding a hard border.

(14) If at the end of the two years no alternative was found, then the Protocol would lapse, meaning Ireland would be back to a hard border scenario.

(15) However, if the Stormont Assembly were to collapse during that period, then the default would be that the Protocol arrangements would continue to apply (ie, the revised backstop).

(16) But there will also be important variations on how Stormont votes for a potential exit.

(17) If Stormont decides to use a simple majority vote, which is seen as less favourable to the DUP, then if that vote to opt out does not succeed, then Stormont would vote again four years on an opt out.

(18) However, if Stormont decided to go for a cross-community majority vote, which is seen as more favourable to the DUP, and the vote did not pass, then Stormont would have to wait another eight years before having another opt-out vote.

[the UK has already issued its temporary arrangements for waiving customs and checks applying to goods moving from Ireland to Northern Ireland, I Blog posted about that]

Moving Goods from Ireland to Northern Ireland (Northern Ireland Brexit)

Exit day is 31st October (this date is in a Statutory instrument)

[this Blog does not focus on Customs or VAT, this post is made only because the changes are substantive]

Today HMRC updated (in a major way) and reissued its guidance on customs procedures applying in Northern Ireland.

Here

Goods moving between Ireland and Northern Ireland will face different procedures compared to other UK-EU trade.

You will not need to:

• get a customs agent or an Economic Operator Registration and Identification (EORI) number

• pay Customs Duty or make import or export declarations to HMRC

You should also consider advice issued by the Irish government about their requirements for goods moving into or out of Ireland.

This was the case in the March instructions (see Blog post then).

What is added is information about moving controlled and licensed goods, transitional simplified procedures and moving goods under transit.

HMRC also issued updated instructions on excise duty applying to exports to Ireland and imports from Ireland.

Export – here.

Import – here.

Customs and VAT processes in Northern Ireland will also change if there is an orderly exit. I will be issuing further Blog posts.