EU exit watch — Five years later, is Brexit done?

What’s the wurst that could happen?

There is a certain irony in the fact that this month’s major argument regarding the Protocol has centred on sausages — a subject with which Prime Minister Boris Johnson regularly irritated EU leaders during his time as a journalist in Brussels. Together with bans on bendy bananas and prawn cocktail crisps, a potential boycott of UK sausages was one of many stories he authored, which were found to owe more to his imagination than to potential EU law.

In June 2021, however, it seemed that the sausage ban might become a reality as the EU held firm to its argument that the terms of the Protocol meant that chilled meat (including sausages) could not be brought from Great Britain into Northern Ireland. This is because Northern Ireland has remained within the EU’s single market and chilled meat products imported from what the EU calls a “third country” (not one of its Member States) are banned. Mr Johnson, who signed the Protocol, and famously said it would involve neither paperwork nor checks, has insisted that it was never meant to divide the UK.

Peace for a time

That particular argument has now been kicked down the road as the two sides reached an 11th-hour agreement to extend the current grace period for the movement of food products across the Irish Sea. Set to end on 30 June, the UK Government had originally threatened to extend it unilaterally, but then asked for an extension until 30 September 2021, and the European Commission has agreed that this will give the two sides further time to discuss their options.

What it continues to argue, however, is that the simple way to avoid the problem is for the UK to remain aligned with EU agri-food regulations. That is not a solution the UK Government is likely to accept, so dealing with the issue has simply been put back to a later date. That part of Brexit is certainly not “done”.

A rose by any other name

While the Government seems determined to resist the EU’s arguments over the question of trade between Great Britain and Northern Ireland, it has taken a more pragmatic approach to other areas of legislation. With regard to the regulation of chemical safety, for example, the UK was faced with needing to replace a huge amount of law, which the EU had established by way of amendments and additions to the REACH Regulation on the registration, evaluation, authorisation and restriction of chemicals (1907/2006). Its answer has been essentially a rebranding exercise in order to create something called UK REACH which, as the Health and Safety Executive (HSE) puts it, replicates the EU law in the UK with the necessary changes to make it operable in a domestic context.

A similar approach has been taken to Regulation (EC) 1272/2008 on classification, labelling and packaging of substances (the CLP Regulation), which has been brought into domestic law as GB CLP, again amended as necessary to operate fully and effectively in Great Britain. A third example is the EU’s General Data Protection Regulation (GDPR), the terms of which were mainly retained in UK law as UK GDPR by way of the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019.

Let’s be friends

Given the problems and disagreements which this series of articles has recorded, it seems only fair to indicate that the last month has also seen some green shoots, which might indicate the possibility of a less antagonistic attitude on both sides as they seek to come to terms with the continuing implications of Brexit. One straw in the wind relates to the sector mentioned above — data protection. Although, as indicated, the UK essentially adopted the EU rules in this area, the European Commission has still spent nearly six months considering whether it could adopt an “adequacy decision” recognising that the UK data protection regime matches up to EU requirements.

While it has finally decided to adopt the required legislation, it has done so with a degree of caution. The decisions will expire after four years with renewal dependent on the UK maintaining comparable privacy standards. They also include provision for changes to be made if the UK is seen to have made significant revisions to its data protection regime, as it signs up to trade agreements with other countries such as Australia or the United States.

With far less publicity than was given to the recent dispute off Jersey, the UK and EU have also reached agreement on Total Allowable Catches (TACs) for 70 fish stocks which will, the Government said, provide stability for UK fleets. Another sign of cooperation has come with a firm indication that the UK will continue to take part in the EU’s main science research programme for academia and industry, Horizon Europe.

Finally, in this brief review of behind-the-scenes co-operation, the European Union Aviation Safety Agency (EASA) and the UK Civil Aviation Authority (CAA) have agreed on a basis for their future working together, which addresses any differences between aviation standards, rules, practices and procedures.

Seizing opportunities

A new Brexit Opportunities Unit has been established to support Lord Frost, the man currently responsible for making a success of Brexit. The new unit will, he explained, review and reshape rules and regulations to boost growth and drive forward innovation, working across the Government on policies to maximise new opportunities from Brexit.

“We’re looking for a visionary, inventive and dedicated leader to come on board to help us shape the future policy direction of the UK”, Lord Frost said. The Government is, he went on, looking for a talented individual to lead the team, who has experience in economics, regulation or business and can challenge policy and produce creative new initiatives.

The elephant in the room

Returning to the question posed at the start of this article, it is becoming increasingly clear that Brexit will not be done until the problems surrounding the Northern Ireland Protocol have been resolved. The main stumbling point is that the Protocol was agreed by the Prime Minister because it was seen as the only way to avoid a politically unacceptable hard border between Northern Ireland and Ireland. However, despite Mr Johnson’s protests to the contrary, what was then created was a border in the Irish Sea which is antagonising politicians and businesses in Northern Ireland and causing some exporters in Great Britain to give up trying to sell to that part of the UK.

The Protocol has meant the introduction of customs formalities, new paperwork and checks at the point of entry for products of plant or animal origin. More than 300 EU directives and regulations in areas such as customs, VAT, agriculture and product regulation continue to apply in Northern Ireland but not in Great Britain. And, as a recent report by the influential think tank, Institute for Government (IfG), has warned, “future divergence between the EU and UK statute books will create more friction for businesses trading across the Irish Sea”.

The Government seems puzzled that the European Commission is insisting on applying the terms of the Protocol, as it repeatedly calls for the EU to apply the spirit rather than the letter of the agreement. The EU is, however, a rules-based organisation and prefers to have its rules written down and properly applied, a discipline which is perhaps alien to the more casual approach favoured by the UK’s Prime Minister. Mr Johnson is unlikely to have welcomed the intervention by French President Emmanuel Macron who said, “We have a Protocol. If, after six months, you say we cannot respect what was negotiated, then that says nothing can be respected. I believe in the weight of a treaty, I believe in taking a serious approach. Nothing is negotiable. Everything is applicable”.

As the IfG notes in its report, forcing the Protocol past opposition in Northern Ireland (where unionist parties are still calling for its outright abolition) was the easy part for the UK Government; the hard part is making it work. Given the contrasting position of the two sides, the Brexit arguments look likely to continue for many months yet.