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Post-Brexit Governance NI

Dynamic Regulatory Alignment and the Protocol on Ireland/Northern Ireland - Two Year and 6 Month Review

Lisa Claire Whitten

 

July 2023

 

Download a copy of this Explainer here

 

Executive Summary

    • Under the Protocol/Windsor Framework, aspects of EU law continue to apply to Northern Ireland despite the UK no longer being in the EU.
    • Those EU laws that still apply in Northern Ireland do so ‘as amended or replaced’ by the EU; this enables Northern Ireland goods to continue to move freely on the island of Ireland and into the rest of the EU internal market.
    • The extent of EU law applying in Northern Ireland since the Protocol was agreed in October 2019 has changed.
    • Ten EU acts have been added to the list of applicable EU laws; two EU acts have been deleted; and two EU acts have expired.
    • 59 EU acts have been repealed; 27 EU acts have replaced them, only five of which were adopted after the UK left the EU on 31 January 2020.
    • As of 1 July 2023, 308 EU acts (i.e. regulations, directives, or decisions) apply in Northern Ireland.
    • The decrease in EU acts applicable in Northern Ireland is primarily due to the consolidation in a single replacement act of several previous acts and not a decrease in the scope of the Protocol/Windsor Framework.
    • The EU regularly adopts amendments and replacements to EU acts applicable under the Protocol/Windsor Framework and to associated implementing acts; these amendments and replacements automatically apply in Northern Ireland.
    • Tracking the evolution of applicable EU law and its potential implications for Northern Ireland is a complex but important task.

Introduction

Northern Ireland occupies a unique position in the relationship between the United Kingdom (UK) and the European Union (EU). The Protocol on Ireland/Northern Ireland provides that aspects of EU law continue to apply in Northern Ireland despite it having left the EU with the rest of the UK on 31 January 2020. This remains the case following the adoption of the Windsor Framework in February 2023.

Under the terms of the Protocol, Northern Ireland (NI) remains part of the UK customs territory. However, the EU customs code applies in respect of Northern Ireland as do specific EU acts that regulate certain individual rights, free movement of goods, VAT and excise, state aid and electricity markets. New EU acts that fall within the scope of the Protocol may also be added to those that apply in Northern Ireland.

Moreover, the Protocol requires that these acts apply in Northern Ireland ‘as amended or replaced’ through the ordinary processes of EU law-making. Such dynamic regulatory alignment is necessary to maintain the free movement of goods on the island of Ireland. However, this has proved politically controversial, not least because it involves the application of EU acts which, since Brexit, neither the UK government nor Northern Ireland representatives have had a direct role in adopting.

In February 2023, after months of (often contested) talks over the implementation of the Protocol, the UK and EU announced the conclusion of the Windsor Framework – a package of measures designed to provide“practical and sustainable measures” that the UK Government and the European Commission considered “necessary to address, in a definitive way, unforeseen circumstances or deficiencies” that had emerged since the Protocol took legal effect. In substance, the Windsor Framework constitutes a body of legal texts which provide for the introduction of a series of easements on customs checks and regulatory requirements on goods entering Northern Ireland from Great Britain and remaining in Northern Ireland. It also allows for a range of specific derogations to be introduced that address GB–NI movements of certain goods, these include new provisions for the movement of pets, parcels, seed potatoes, certain plants and plant products, medicines for human use, and agrifood products.

In the Windsor Framework the UK and EU also made a range of commitments regarding the involvement of NI stakeholders in the implementation the Protocol. Prominent among this category of changes was the introduction of so-called ‘Stormont Brake’ mechanisms which allow members of the NI Assembly (MLAs) to apply a ‘brake’ to otherwise automatic updates to certain EU acts that apply under the Protocol if/when they judge that the relevant update would have a “significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist” (Article 13(3a) Protocol). Additionally, when implementing this aspect of the Windsor Framework in domestic law the UK government provided that, if/when the  NI Executive and NI Assembly are restored, the UK may not agree to a new EU act being added to the Protocol without first achieving cross-community consent in the NI Assembly, unless ‘exceptional circumstances’ exist.

Notwithstanding the conclusion of the Windsor Framework – including its provisions for easements on the regulatory requirements for the GB-NI movement of goods and/or the introduction of Stormont Brake mechanisms – aspects of EU law continue to apply in Northern Ireland and do so ‘dynamically’ under the Protocol/Windsor Framework.

This being so, this explainer reviews the substance of the first two and a half years of dynamic regulatory alignment with those elements of EU law that still apply in post-Brexit Northern Ireland. The content builds on four previous reviews carried out after the first six months, 12 months, 18 months and 24 months of the Protocol’s implementation.

The extent of change to the EU law applicable under the Protocol/Windsor Framework after two and a half years does not differ much from that presented after 24 months of the Protocol’s implementation, nor indeed from that presented after 18 or 12 months; this is itself an important finding. The absence of significant change throughout 2021, 2022 and the first half of 2023 reflects the slow pace of EU legislative processes and the relative stability of the specific set of EU acts that continue to apply in the UK in respect of Northern Ireland.

Regular minor amendments and technical updates to relevant EU implementing legislation also apply to Northern Ireland. While many have little or no impact in Northern Ireland in terms of policy, some do have implications for industry and stakeholders with some changes also requiring dedicated domestic law to implement them. The wide variation in terms of policy impact of – sometimes frequent – amendments and updates to applicable EU law underlines the ongoing importance of monitoring the legal and practical implications of the unique post-Brexit position of Northern Ireland; the introduction of the Stormont Brake mechanisms reinforces the need for monitoring.

Given the generally slow pace of change, the policy impacts of dynamic regulatory alignment for Northern Ireland under the Protocol/Windsor Framework are not as extensive as they could be. This is not to say dynamic regulatory alignment is without its challenges in respect of the practical impacts for industry, democratic accountability, and legislative scrutiny. Although they are largely still to be implemented, new provisions agreed in the Windsor Framework for the greater involvement of Northern Ireland stakeholders have the potential to mitigate the practical and democratic challenges created by the dynamic alignment of Northern Ireland with EU law under the Protocol. Following a review of the first two and a half years of implementation, the conclusion to this explainer returns to briefly consider the potential of the new provisions for stakeholder engagement and the issues they may address.

1. The new dynamism of Northern Ireland

Under Article 13(3) Protocol, EU acts listed in Annexes to the Protocol apply ‘as amended or replaced’ to the UK in respect of Northern Ireland. When the Protocol and its Annexes were agreed by UK and EU negotiators as part of the UK-EU Withdrawal Agreement in October 2019, 338 acts were listed. Under the Article 13(4) Protocol, EU acts can also be added to, and others deleted from, those already listed.

This means that, under the Protocol/Windsor Framework, Northern Ireland is in a position of ‘dynamic alignment’ with a specified but potentially evolving selection of the EU ‘acquis’, the body of legal and other agreed obligations and commitments that apply to, and in, EU member states.

In implementing the Protocol/Windsor Framework, therefore, the UK has committed to keeping Northern Ireland aligned with changes made to the EU acts included in the scope of the Protocol.

Two and a half years after the Protocol entered into force, how has the body of EU law that applies to and in Northern Ireland changed?

Like many issues in the post-Brexit world, the answer is not simple. Several types of change have taken place. They fall into four broad categories:

    • additions to and deletions from the Annexes to the Protocol
    • repeal, replacement, and expiry of applicable EU law
    • amendments to applicable EU law
    • changes to EU legislation that implements applicable EU law.

2. Additions to and deletions from the Annexes to the Protocol

The first category of change concerns the specific EU acts that apply in Northern Ireland under the Protocol. Through the EU-UK Joint Committee set up to oversee the implementation of the UK-EU Withdrawal Agreement, the UK and the EU can, by agreement, add new EU acts that fall within the scope of the Protocol to the relevant Annexes (Article 13(4) Protocol). The Joint Committee can also remove listed EU acts.

Before the end of the 11-month transition period that followed the UK’s withdrawal from the EU, the UK and EU agreed in December 2020 to add eight EU acts to Annex 2 of the Protocol. It also agreed to remove two EU acts listed in the same Annex.

Of the eight acts added, five related to legislation that the Joint Committee decided, following review, should have been included in the original text of Annex 2. The five acts that were added concern:

The three other additions were new EU acts adopted since the content of the Protocol had initially been agreed in November 2018. The Joint Committee decided that the following three acts fell within the scope of the Protocol, so added these to Annex 2:

    • bilateral safeguard clauses and other mechanisms for the temporary withdrawal of preferences in certain EU trade agreements with third countries (Regulation (EU) 2019/287);
    • measures to reduce the impact of certain plastic products on the environment (Directive (EU) 2019/904); and
    • and measures to control the introduction and import of cultural goods (Regulation (EU) 2019/880).

The two acts that were removed by the Joint Committee concerned CO2 emissions standards for passenger cars (Regulation (EC) 443/2009) and light-duty commercial vehicles (Regulation (EU) 510/2011). Their original inclusion was deemed unnecessary.

Taking these changes into account, when the Protocol entered into force on 1 January 2021 following the end of the transition period, 344 EU acts were listed in its Annexes.

Texts published as part of the Windsor Framework included several proposals for new EU acts which would make provisions in EU law to effect easements on checks and controls on GB–NI movements of goods. Two new acts were adopted by the EU on 14 June 2023. They were subsequently added to Annex 2 of the Protocol by Decision 2/2023 of the EU-UK Joint Committee.[1] The two acts concern:

    • specific rules relating to the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into Northern Ireland (Regulation (EU) 2023/1231)
    • specific rules relating to medicinal products for human use intended to be placed on the market in Northern Ireland and amending Directive 2001/83/EC (Regulation (EU) 2023/1182).

Following the conclusion of the Windsor Framework and as part of its efforts to increase democratic safeguards in the operation of the Protocol, the UK government introduced a new process that, subject to the restoration of devolved government in Northern Ireland, will precede any exercise of the Article 13(4) procedure for adding new EU acts to the Protocol / Windsor Framework.

Under the Windsor Framework (Democratic Scrutiny) Regulations 2023 (if/when enacted) no UK Minister will be able to agree, at the EU-UK Joint Committee, to the addition of a new EU act to the Protocol/Windsor Framework without having first secured cross-community consent for doing so in the NI Assembly unless ‘exceptional circumstances’ are deemed to apply or the addition of the new EU act ‘would not create a new regulatory border’ between Great Britain and Northern Ireland. According to the legislation exceptional circumstances in this context includes when there is no First Minister or deputy First Minister in office in Northern Ireland; and ‘a new regulatory border’ in this context means any requirements relating to the movement of goods that would materially divert trade or impair the free movement of goods.

As the devolved institutions in Northern Ireland are not currently functioning, the potential impact of this new requirement for cross-community consent to Article 13(4) additions to the Protocol/Windsor Framework remains uncertain. In view of the political contestation over post-Brexit arrangements for Northern Ireland that has been evident in Northern Ireland since the Protocol came into effect, achieving cross-community consent in the NI Assembly for future additions of new EU acts is expected to be difficult.

3. Repeal, replacement, and expiry of applicable EU Law

The second category of change covers the repeal, replacement, and expiry of EU acts – regulations, directives, and decisions – listed in the Annexes to the Protocol. Changes in this category are the result of normal EU legislative processes and follow from Article 13(3) Protocol stating that relevant EU acts apply as ‘amended or replaced’ to and in Northern Ireland.

Of the 338 EU acts originally listed in the Annexes, 59 had been repealed as of 1 July 2023. Only one had been repealed in the preceding six months.

Many, but not all, of the repealed EU acts have been directly replaced by a new piece of EU legislation. This is because several replacement acts consolidate provisions previously spread over various pieces of (now repealed) legislation into one or two new, more comprehensive, acts. The 59 repealed acts have been replaced by 27 new acts.

In most instances, even more than three years after the UK withdrew from the EU, this dynamic alignment concerns changes to EU acts adopted when the UK was in the EU. Of the 27 replacement acts, only five were adopted after the UK left the EU on 31 January 2020; two in 2020 (Decision (EU) 2020/263 and Regulation 2020/740); two in 2021 (Directive (EU) 2021/555 and Regulation (EU) 2021/821); and one in 2022 (Commission Regulation (EU) 2022/2473)– the latter three therefore being adopted after the end of the UK Transition Period; more details on the acts and date of adoption are provided below.

In terms of coverage, 23 of the 59 repealed acts concerned controls on animal health and were replaced by two new EU acts: Regulation (EU) 2016/429 and Commission Delegated Regulation (EU) 2020/687. The first of these is known as the ‘Animal Health Law’ and the second is a related, supplementary act. Together these two acts incorporate and update pre-existing provisions set out in the 23 repealed acts.

The changes laid down in the Animal Health Law were agreed in March 2016, so before the UK’s EU referendum and therefore with the UK taking full part in their adoption. The adopted text included transitional measures and allowed for the repeal of earlier acts to take effect in April 2021.

As a supplement to the Regulation (EU) 2016/429, Commission Delegated Regulation (EU) 2020/687 sets out measures to prevent and control the spread of certain diseases. The relevant diseases were listed in the Regulation (EU) 2016/429 but required more specific provisions; these are laid down in Commission Delegated Regulation (EU) 2020/687.

In a similar way, seven of the other repealed acts concerned EU rules on official controls and checks on food and feed, animal health and welfare standards, plant health and plant protection. These were replaced by a single overarching EU act: Regulation (EU) 2017/625, known as the ‘Official Controls Regulation’. It incorporates and updates pre-existing provisions in the repealed acts. It was agreed in April 2017, shortly after the UK formally notified its intention to withdraw from the EU but with the UK participating in the regulation’s adoption. The new act (Regulation (EU) 2017/625) included transitional measures and allowed for the repeal of the seven earlier acts to take effect in December 2019.

Also repealed were two directives – Council Directive 93/42/EEC and Council Directive 90/385/EEC – concerning the production of and trade in medical devices. This had been provided for in Regulation (EU) 2017/745 which was already listed in Annex 2 to the Protocol, so the repealed directives were not replaced directly.

In addition, two regulations concerning requirements for the use of statistics on trade in goods between EU member states and with non-EU countries – Regulation (EC) No 638/2004 and Regulation (EC) No 471/2009 – were repealed and replaced by Regulation (EU) 2019/2152 on European business statistics. It incorporates and updates requirements from the earlier acts. The new regulation was agreed in November 2019, when the UK was still an EU member state; it also included transitional measures for the scheduled repeal of earlier acts to take effect at the end of 2021.

Also giving effect to a regulation adopted in November 2019, three regulations concerning the requirements for approving motor vehicles for use – Regulation (EC) No 78/2009, Regulation (EC) No 661/2009 and Regulation (EC) No 79/2009 – were repealed and replaced by Regulation (EU) 2019/2144 on requirements regarding general safety and protection of occupants applied to motor vehicles as well as to trailers, systems, components, and technical units used in them. This repeal and replacement came into effect in July 2022.

A further 21 repealed regulations and directives originally listed in the Protocol have been replaced directly by new acts. Of these replacement acts, four concern the regulation of electricity markets and energy supplies (Directive 2009/72/EC, Regulation (EC) 714/2009, Regulation (EC) 713/2009 and Directive 2005/89/EC) and were originally listed in Annex 4 supplementing Article 9 Protocol which makes provision for the continued operation of the Single Electricity Market on the island of Ireland. These four acts were replaced by four updated acts (Directive (EU) 2019/944, Regulation (EU) 2019/943, Regulation (EU) 2019/942 and Regulation (EU) 2019/941 respectively) between July 2019 and December 2020. The replacement acts cover the same policy areas and implement changes agreed in June 2019 – again while the UK was still a member state of the EU.

Of the remaining acts, 17 have been repealed and replaced directly, 12 of these were repealed before the end of 2021 and the first year of the Protocol’s implementation, four were repealed during 2022 and one during the first sixth months of 2023.

Those repealed and replaced in 2021 concern:

Those EU acts repealed and replaced in 2022 concern:

The one EU act repealed and replaced in 2023 so far concerns:

One additional act concerning plant protection (Council Directive 2000/29/EC) was repealed in December 2022 under provisions in Regulation (EU) 2016/2031 which already applies under the Protocol.

In addition to the 59 repealed acts, two acts originally listed in the Annexes expired after the UK withdrew from the EU. The two acts concerned the regulation of imports from third countries affected by the Chernobyl disaster (Council Regulation (EC) 733/2008) and temporary trade measures for goods originating in Ukraine (Regulation (EU) 2017/1566).

Considering all these changes alongside the additions and deletions agreed to date by the Joint Committee, the number of EU acts that apply in post-Brexit Northern Ireland has decreased since the Protocol entered into force. As of 1 July 2023, there are now 308 EU regulations, directives and decisions that apply; 30 less than when the Protocol was first agreed in October 2019 (see Table 1). The decrease does not reflect any narrowing of the scope of the Protocol but is essentially due to the consolidation in a single replacement act of several previous acts.

Explainer 11 - Dynamic Alignment 2yrs 6mnths - I

4. Amendments to applicable EU law

A third category of change involves amendments to EU acts listed in the annexes to the Protocol. These are published as new discrete pieces of legislation, but which explicitly amend established discrete pieces of legislation which are also Protocol-applicable EU acts; often, but not always, ‘consolidated text’ versions of the latter are subsequently published (see 7 below).

One of the examples of this type of change is Commission Regulation ((EU) 2022/2046) introduced on 24 October 2022 which amends Regulation (EU) No 1408/2013 concerning the application of EU state aid rules in the agriculture sector. It replaced the maximum cumulative amounts that previously applied for the whole of the UK with ‘corresponding amounts’ for Northern Ireland alone. Regulation (EU) No 1408/2013 applies under Article 10 and Annex 5 of the Protocol. A consolidated text version of the regulation, published in November 2022, reflects the update.

Another example relates to the supply of medicines to Northern Ireland, a prominent issue in UK-EU talks on implementation of the Protocol. On 12 April 2022, the EU adopted Regulation (EU) 2022/641 to amend existing Regulation (EU) No 536/2014 concerning the regulation of medicines to introduce derogations from certain obligations for medicines that are available in Northern Ireland as well as in Ireland, Cyprus, and Malta. A consolidated text version of Regulation (EU) No 536/2014, which applies under Article 5 and Annex 2 of the Protocol, was published in December 2022, reflects the update. As noted above (see section 2), following agreement on the Windsor Framework, the EU in June 2023 adopted a further new act concerning the specific rules that apply to medicinal products for human use and placed on the market in Northern Ireland. The provisions in the new Regulation ((EU) 2023/1182) – since added by the EU-UK Joint Committee to Annex 2 of the Protocol/Windsor Framework - build on those in Regulation (EU) 2022/641.

An even more recent example of this type of change relates to safety standards of children’s toys. A Commission Decision ((EU) 2023/1338) published on 28 June 2023 amends Directive 2001/95/EC on general product safety requirements, which applies to Northern Ireland under Article 5 and Annex 2 of the Protocol. The amendments relate to the standards and requirements for products designed and sold for use by children (toys, feeding etc.) or for their care (car seats, carriers etc.) and reflect “new scientific and technical knowledge and… market evolution” since the initial Directive was adopted in December 2001.

5. Changes to EU legislation implementing applicable EU law

The fourth category of change relates to legislation that implements the EU acts listed in the Annexes to the Protocol. As with repeals, replacements, expiries and amendments, this type of change is the result of normal EU legislative processes. It also follows from Article 13(3) Protocol.

To understand the significance of this third category it is helpful to first explain what EU ‘implementing’ or ‘delegated’ legislation is and why it exists.

Often EU directives, regulations, and decisions, such as those listed in the Annexes to the Protocol, are written in quite general terms. They are, after all, designed to apply in all EU member states. This means, however, that the original ‘parent’ act – the piece of EU legislation listed in an Annex to the Protocol – does not always set out in detail all the procedures, processes or requirements that may be necessary to implement its provisions.

So, to avoid unhelpful ambiguity or unconstructive variation in the way a new law is implemented, EU acts often provide for implementing or delegated legislation to be adopted. The difference between implementing and delegated acts reflects the process for their adoption; the purpose of both is the same, namely, to implement the parent act. Such legislation is always within the scope of a given ‘parent’ act, sets out the rules and procedures for its operationalization, is adopted after the original parent act has been passed and according to its terms.

EU implementing legislation – including that applicable under the Protocol/Windsor Framework – is regularly adopted by either the Commission or the Council. In 2022, the EU adopted 1243 pieces of implementing legislation. Not all of these apply to Northern Ireland under the Protocol/Windsor Framework. Of the 1243 implementing acts adopted, 716 (representing 58%) were within the scope of the Protocol (see Table 2). In 2023, so far, the EU have adopted 562 pieces of implementing legislation; of these 355 (representing 63%) have been within the scope of the Protocol.

Explainer 11 - Dynamic Alignment - 2yrs 6mnths II

Figures for both total implementing acts adopted during 2022 and so far in 2023 and the proportion of those that are Protocol-applicable may seem high. It is important to note, however, that most implementing acts concern very technical, relatively minor, and specific issues, and they remain within the scope of the original ‘parent’ act. Moreover, while all implementing acts made under ‘parent’ acts listed in the Protocol and its Annexes are applicable to Northern Ireland, not all of them are significant in terms of policy.

For example, implementing acts are adopted to correct errors in different language versions of an EU act: Commission Implementing Regulation (EU) 2022/176 made on 9 February 2022 corrects certain language versions of a particular Annex of the Official Controls Regulation (Regulation 2017/625) (noted above) and applies under Article 5 and Annex 2 of the Protocol; similarly Commission Implementing Regulation (EU) 2022/827 made on 20 May 2022 corrects the Danish language version of an Implementing Regulation ((EU) 2019/1842) that concerns arrangements for adjusting allocations of greenhouse gas emission allowances and applies under Article 9 and Annex 4 of the Protocol.

Implementing acts are also used to introduce geographically specific derogations to certain Member States which are unlikely to have any material impact on Northern Ireland. For example, Commission Implementing Decision (EU) 2023/696 made on 27 March 2023 provides for the acceptance on the part of the EU of an application made by the Italian Government for a one-year extension to an existing derogation from the requirements of Directive (EU) 2016/797 on the interoperability of rail systems across the EU for new trains to be fitted with ‘European Train Control System (ETCS) Baseline 3’ by July 2023. The Italian Government previously secured a derogation from the relevant requirements of Commission Regulation (EU) 2016/919 for ten of its trains to instead comply with ‘ETCS Baseline 2’ for a transitional period – this new implementing act extends that derogation.

While all of these implementing acts make changes to EU acts that apply under the Protocol, none has an ‘on-the-ground’ impact in Northern Ireland.

Some technical changes are of significance, or potential significance, in and for Northern Ireland. For example, 72 of the EU implementing acts adopted in 2022 and which apply under the Protocol concern measures being taken across the EU and in Northern Ireland to address bird flu. While the primary purpose of these 72 implementing acts was technical – making amendments to lists of geographic regions where bird flu was or had been present – and many have already ceased to have effect, they also concern a very real issue facing the agrifood sector in Northern Ireland and across the UK and EU, so they are, in this respect, noteworthy.

Also, a small number of implementing acts have been adopted that address Northern Ireland and its position under the Protocol directly. On 21 February 2022, a Commission Implementing Regulation (EU) 2022/250 was made to amend existing EU implementing legislation to introduce a new model of animal health certificate for GB-NI movements of certain livestock and so postpones the need for certificates regarding scrapie disease to be provided to allow time for GB holdings to be approved as ‘controlled risk’ despite being outside EU regulation.

On 27 April 2022, Commission Implementing Regulation (EU) 2022/680 was adopted to amend a standardized poster (provided for in Commission Implementing Regulation (EU) 2020/178) concerning the bringing of plants, fruits, vegetables, flowers or seeds, into the EU so as to include the ‘United Kingdom (Northern Ireland)’ in the list of non-EU territories for which there is an exemption from the ordinary requirement of a sanitary or phytosanitary (SPS) certificate for doing so. Again, the actual change here is very minor; however, it reflects the fact that the Protocol has provided for the continued free movement of goods on the island of Ireland, thereby negating the necessity for an SPS certificate that would otherwise be required in view of the UK no longer being in the EU.

Other implementing acts which do not address Northern Ireland directly but make provisions related to the broader EU-UK relationship, are also important for understanding the effect of alignment. For example, on 20 July 2023, Commission Implementing Regulation (EU) 2023/1511 regarding the acceptability for entry to the EU (plus Northern Ireland) of certain plants originating in the UK (not including Northern Ireland) was adopted. A request made by the UK in March 2022 for the category of its exports to the EU of Malus sylvestris (or Crab Apple Trees) seeds and saplings to be lowered in view of pest-control measures, is accepted in Implementing Regulation 2023/1511 and consequential updates made to the ‘parent act’ – Regulation 2016/2031 – on protective measures against pests of plants, which applies to Northern Ireland. Similarly, on 21 June 2023,Commission Implementing Regulation (EU) 2023/1203 made provision for the acceptance of a UK application for lowering the risk category for its exports to the EU of seeds and saplings of Malus domestica (or Apple Trees) on the basis of UK pest control measures; again this will in effect mean checks and controls on the entry of these plant products into Northern Ireland from Great Britain.

6. A Stormont Brake for Amendments and Replacements

While the examples above underline the often-technical nature of provisions made in EU implementing legislation, they also demonstrate the potential for variation in terms of policy significance and sectoral impact in and for Northern Ireland. This is also why changes arising under the Protocol/Windsor Framework, including via implementing legislation, are important to track.

Moreover, in view of the potential exercise of the ‘Stormont Brake’ to otherwise automatic updates to some of the EU laws that apply to Northern Ireland, tracking relevant developments is arguably even more important following the conclusion of the Windsor Framework.

Under Article 13(3)(a) Protocol, a Stormont Brake can be ‘pulled’ in relation to the application in Northern Ireland of amendments and replacements to the majority of EU acts that apply under Article 5 and Annex 2 of the Protocol, i.e. those that primarily concern the movement of goods. However, although any changes made to those EU acts listed under headings 1 and 7–47 of Annex 2 are potentially in scope of Article 13(3)(a), for the legitimate exercise of the Stormont Brake on the part of MLAs, it must be demonstrated that the relevant change to EU law is likely to have a “significant impact specific to everyday life of communities in Northern Ireland” and one “that is liable to persist” – the only way to know whether or not this is the case, is to monitor relevant developments in EU law.[2] As this explainer demonstrates, this is no small task.

7.  Tracking changes to applicable EU Law – EurLex… and Consolidated Texts

Tracking change, however, is not straightforward. Adopted EU legislation is published in the Official Journal of the European Union, but determining which pieces of EU law apply to Northern Ireland, and which do not, requires detailed study and timely cross-referencing.

A notable development in this respect was the launch in the summer of 2022 of webpages dedicated to EU law applicable under the Protocol. Established by the European Commission as part of the EUR-Lex website, these pages list all those EU acts that apply to Northern Ireland under the Protocol and so includes ‘parent’ acts, implementing acts, repealed acts, expired acts and replacement acts. From the UK government’s perspective, the EUR-Lex website reflects ‘the EU’s view of applicability’ with the UK Foreign Secretary stating that its content is ‘not endorsed’ by the UK government. Notwithstanding its ‘unilateral’ nature, as the only comprehensive official record of Protocol-applicable law, the EUR-Lex website is an important resource for anyone involved in, or affected by, the implementation of the Protocol. Calls had been made, notably by the House of Lords’ Protocol on Ireland/Northern Ireland Sub-Committee, for the UK government to produce its own ‘log’ or audit’ of all EU legislation that applies in Northern Ireland. While they declined to commit to producing a comprehensive record of EU law that applies in Northern Ireland and changes to it, in its Command Paper on the Windsor Framework the UK government did commit to requiring that the Office for the Internal Market (OIM) will “specifically monitor any impacts for Northern Ireland arising from relevant future regulatory changes” (para. 52) how this will be implemented or reported on is not yet clear.

Keeping track of applicable EU law under the Protocol is facilitated in part by the occasional publication of the ‘consolidated text’ versions of EU law. When a large number of amendments have been made to a ‘parent act’ of EU law (most often via EU implementing legislation) a ‘consolidated’ version of the legal text can be published in which all relevant changes are reflected. These consolidated versions of EU acts are produced for information purposes – they are not legal texts. Nonetheless, they bring together in one place changes and can provide a useful indicator of the extent to which those specific EU acts are evolving and are therefore worth monitoring.

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EUR-Lex and the Applicable EU Law
(https://eur-lex.europa.eu/content/news/IENI.html)

Since 31 January 2020 when the UK left the EU consolidated text versions of 147 of those acts that apply under the Protocol have been published. Of these 128 were published after the end of the UK Transition Period on 1 January 2021, and 33 have been published in the first six months of 2023.

8. Tracking changes to applicable EU Law – Post-Brexit Governance NI Research Database

Tracking changes in EU law that apply under the Protocol is a particular focus of the three-year ESRC-funded research project Governance for ‘a place between’: the Multilevel Dynamics of Implementing the Protocol on Ireland/Northern Ireland for which this explainer has been produced.

To this end, the project has developed a freely accessible database that provides links to each applicable EU act as well as relevant implementing acts adopted by the EU that can be found through the ‘consolidated text’ versions of the original acts; any additions, amendments, or replacements as well as the deletions and instances where, through expiry, an EU act no longer applies are also recorded. The database contains a list of all of those EU acts that apply in the UK ‘in respect of Northern Ireland’ through the Protocol as of 1 July 2023. It therefore reflects all of the ‘amendments and replacements' to applicable EU law described in this explainer.

Alongside this, the Post-Brexit Governance NI website maintains lists of relevant domestic UK laws that implement Protocol-applicable EU law where this is necessary. These include relevant Statutory Instruments passed in Westminster and Statutory Rules passed in Stormont. Examples include:

Statutory Instruments (Westminster)

    • The Customs (Northern Ireland: Repayment and Remission) (EU Exit) (Amendment) Regulations 2023 (SI 2023/618)
    • The PEACE PLUS Programme (Northern Ireland) Regulations 2023 (SI 2023/477)
    • Human Medicines (Amendment) (Supply to Northern Ireland) Regulations 2021 (SI 2021/1452)
    • Customs (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2021 (SI 2021/1489)
    • Customs (Amendment) (EU Exit) Regulations 2022 (SI 2022/109)
    • Value Added (Enforcement Regulated to Distance Selling and Miscellaneous Amendments) Regulations 2022 (SI 2022/226).

Statutory Rules (Stormont)

    • Edible Crabs (Conservation) (Amendment) Regulations (Northern Ireland) 2021 (SR 2021/336)
    • Spring Traps Approval (Amendment) Order (Northern Ireland) 2021 (SR 2021/321)
    • Official Controls (Plant Protection Products) Regulations (Northern Ireland) 2020 (SR 2020/360).

Reflecting the nature of ‘amendments and replacements' made at EU level, the content of these implementing UK laws tends to be technical and specific. To demonstrate, the Value Added Tax (Enforcement Regulated to Distance Selling and Miscellaneous Amendments) Regulations 2022 (SI 2022/226) is a statutory instrument made in March 2022 which corrects minor and consequential errors in domestic legislation related to simplified VAT accounting schemes (the ‘One Stop Shop’ and ‘Import One Stop Shop’) which form part of the EU e-commerce package that came into force in July 2021 and which the UK implements under the Protocol (see Explanatory Memorandum).

Also listed are the small number of statutory instruments so far made that implement aspects of the provisions specifically agreed as part of the Windsor Framework. Including, for example, The Windsor Framework (Disclosure of Revenue and Customs Information) Regulations 2023 (SI 2023/623). Other aspects of the Windsor Framework have been provided for in draft secondary legislation at Westminster. Examples include: The Postal Packets (Miscellaneous Amendments) Regulations 2023 (SI 2023/DRAFT) and The Windsor Framework (Democratic Scrutiny) Regulations 2023 (SI 2023/DRAFT).

Conclusion: A dynamic democratic challenge

What is clear from this explainer is that implementation of the Protocol/Framework and the process of dynamic regulatory alignment involve extensive legislative complexity.

Since the terms of the UK’s withdrawal from the EU were agreed in October 2019, the EU acquis that applies under the Protocol has changed. To date, however, the majority of the most substantive ‘amendments and replacements’ enact changes agreed while the UK was still part of the EU.

This reflects the generally slow pace of EU legislative processes and the fact that the EU acquis that applies in post-Brexit Northern Ireland – primarily concerning trade in goods – is relatively stable. Moreover, many recent ‘amendments and replacements’ were made while the UK was an EU member state and so with the UK government’s agreement, but this will not be the case for much longer.  

Moreover, as the UK diverges from what was EU law and is currently retained EU law, the implications of Northern Ireland’s dynamic regulatory alignment can be expected to become more evident and more significant in respect to policy development and implementation. As the Windsor Framework focuses primarily on easing checks and controls on GB-NI goods movements, EU acts applicable under the Protocol/Windsor Framework continue to apply to goods being produced in Northern Ireland; they also apply to GB goods not entering Northern Ireland through the ‘green lane’. Dynamic regulatory alignment therefore remains real in and for Northern Ireland.

This returns us to the challenge of managing the practical effects of dynamic regulatory alignment alongside ensuring democratic accountability and legislative scrutiny in Northern Ireland. These challenges follow from both the novelty of the Protocol’s provisions and the degree of transparency that has so far surrounded the activities of the three joint UK-EU bodies set up to oversee their implementation or the Protocol and now the Windsor Framework: the Joint Committee, the Specialised Committee, and the Joint Consultative Working Group.

To address these, at least in part, the Windsor Framework included provisions and commitments regarding NI stakeholder engagement in the implementation of the Protocol. For example, in Declaration 2/2023, the EU-UK Joint Committee agreed that relevant meetings of the Specialised Committee’s (new) Special Body on Goods and the Joint Consultative Working Group (new) sub-groups – both composed of UK and EU experts – could invite representatives from business and civic society stakeholders to attend. Additionally, in a statement on ‘enhanced engagement with Northern Ireland stakeholders’ the European Commission committed to provide: annual presentations of upcoming EU policy initiatives and legislative proposals relevant to Northern Ireland; specific information sessions on new EU initiatives if/as requested by stakeholders; relevant public consultations and/or involvement of Northern Ireland stakeholders in targeted consultations for specific case; and dedicated overviews of Northern Ireland stakeholders input into consultations.

While the UK government has yet to provide details of how it envisages ensuring regular engagement with NI stakeholders, if operationalised effectively, the Windsor Framework’s agreed new avenues for stakeholder engagement could address some of the concerns regarding the implications of regulatory alignment for Northern Ireland, particularly as regards the interests of Northern Ireland being heard in the process. If stakeholder engagement does not deliver, MLAs may be able to use a Stormont Brake. The essential point here is that regulatory alignment is and remains a central element of the Protocol/Windsor Framework, and so its multiple dimensions need to be monitored and understood.

July 2023

 

Dr. Lisa Claire Whitten is Research Fellow on the Governance for ‘a place between’: the multilevel dynamics of implementing the Protocol on Ireland/Northern Ireland at Queen's University Belfast. She can be contacted via: l.whitten@qub.ac.uk.

 

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