Brexit

Executive Summary

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Our December blog, examined the optimism at the end of last year that a way could be found out of the political deadlock that has paralysed the Northern Ireland Assembly for the last two years. As our blog noted, although those hopes did not materialize, the fact that the discussions had reached such an advanced stage suggested that a solution might be found in the New Year.  The announcement by the Democratic Unionist Party (DUP) on 30 January that a Deal had been reached seems to justify that optimism.

A Historical Recap

The 1998 Belfast Good Friday Agreement (GFA) brought an end to 30 years of ‘The Troubles’.  It struck a delicate balance between the competing interests of the Unionist and Nationalist communities in Northern Ireland.  Key to its success was the removal of border infrastructure between Northern Ireland and the Republic of Ireland, and the creation of a Power Sharing Executive (PSE) for Northern Ireland.  The PSE allocates the position of First Minister to the largest political party in Northern Ireland, and the position of Deputy First Minister to the second largest.  Other than the status implied by the titles, there is very little practical difference between the two roles.

Northern Ireland’s parliament, the Stormont Assembly, only actually sat for any extended period of time between 2007-2017, but, until the last set of elections, the DUP had always held the position of First Minister.

Brexit and Northern Ireland

Northern Ireland voted by 56:44 to remain in the EU in the 2016 Brexit referendum.  The Unionist community largely voted ‘Leave’, believing it would consolidate Northern Ireland’s position within the UK; the Nationalist community generally voted ‘Remain’ for the opposite reason. 

Continue Reading The DUP and The Deal: Power-Sharing Returns to N Ireland

Over the last few weeks, hopes have been rising that a way could be found out of the political deadlock that has paralysed the N Ireland Assembly over the last two years. Those hopes were cruelly dashed on 18 December, but the fact that the discussions had reached such an advanced stage gives hope that a solution may be closer and reachable in the New Year.

A Historical Recap

The Belfast Good Friday Agreement (GFA) of 1998 brought to an end 30 years of ‘The Troubles’ through a delicate piece of negotiation which carefully balanced the competing goals and interests of the Unionist and Nationalist communities in N Ireland.  A key element of the Agreement was the removal of all border infrastructure between N and S Ireland (which for the Nationalist community was a very visible reminder of the division of the Island of Ireland).  Another crucial ingredient was the creation of a Power Sharing Executive (PSE) for N Ireland. Under this part of the Agreement, the largest Political Party in Northern Ireland would hold the position of First Minister, with the second largest holding the position of Deputy First Minister.  The Agreement ensured that in practice, there was very little difference (other than status) between the two roles.

For 24 years, the largest political party in N Ireland was the Democratic Unionist Party (DUP) who accordingly held the position of First Minister, with Sinn Fein holding the position of Deputy First Minister.

Brexit and N Ireland

In the 2016 referendum, N Ireland voted by 56:44 to remain in the EU, with the Unionist community broadly supporting Leave on the basis it would solidify N Ireland’s position within the UK.  The UK left the Customs Union and the Single Market as part of the Brexit deal with the EU.  In theory, that should have pulled N Ireland out of both entities as well, re-creating border infrastructure between N and S Ireland. Brexit (requiring a border) collided with the reality of the GFA (abolishing the border), creating a circle which was impossible to square. In the end, the UK government placed the border between the UK and the EU in the Irish Sea, effectively cutting the N Ireland economy off from the rest of the UK and enabling companies to trade more easily with the Republic of Ireland than with GB.

Continue Reading Brexit and N Ireland

During its 40-year membership of the EU, the UK incorporated many thousands of pieces of EU legislation (including swathes of employment, workers and environmental protection legislation introduced under the EU’s Social Chapter) into UK law.  To ensure a smooth transition when the UK left the EU, that legislation was swept across onto the UK Statute Book as ‘Retained Law’.  Since one of the arguments of the Leave campaign had been to ‘take back control’ of the UK’s legislation, it was only to be expected that Retained Law would eventually be inspected for the logic of keeping it in a UK outside the EU – not least since part of the purpose of EU legislation was to ensure legal conformity across a 28-nation trading bloc. 

Ideally, each piece of legislation would have been individually assessed to decide on its merit and value to the UK’s international competitivity and its compliance with international norms on climate change, environmental protection, human and employment rights etc.  Laws which met those requirements would then have been redrafted to suit the UK specifically: those which did not and which the UK outside the EU did not need would have been jettisoned after due consideration. 

The Bill…

Whilst it is widely accepted that a review and redraft of EU legislation is necessary and even logical for a UK outside the EU, concerns have been increasingly focused, not on the changes per se, but on the method that the government is planning to use to make those changes.

Continue Reading A Brexit Legislation Bonfire?

The UK government has proposed legislation to open the way for gene‑edited food products in England.  The Genetic Technology (Precision Breeding) Bill (“Precision Breeding Bill”) sets out a new regulatory regime that may provide a faster and easier path to market for certain gene-edited plants, animals and derived products.

Overview of the Precision Breeding Bill

The Precision Breeding Bill applies to “precision bred organisms”.  These are defined in the Precision Breeding Bill as plants and animals that have been genetically modified through the use of “modern biotechnology”, where that genetic modification is of a type that could have been produced using “traditional processes” (i.e. selective breeding, grafting, embryo transfer, spontaneous mutation, etc.).  The definition of “modern biotechnology”, for the purposes of the Precision Breeding Bill, aligns with the set of techniques listed in regulation 5(1)(a) or (b) of the Genetically Modified Organisms (Deliberate Release) Regulations 2002 (S.I. 2002/2443).  Ultimately, the effect of the Precision Breeding Bill is to create a distinction in law between ‘precision bred organisms’ and all other ‘genetically modified organisms’ (“GMOs”) where the genetic modification could only have been produced using genetic modification technologies (e.g. introducing genes from one species into another, entirely unrelated, species).

The Precision Breeding Bill provides that a person wishing to use precision bred organisms for research or for marketing must first notify and register the precision bred organism.  Once notified and registered for research and development, the precision bred organisms can be released i.e. planted, bred or cultivated.  No specific authorisation is required.  Before marketing the precision bred organism, a person must apply for a ‘precision bred confirmation’, which indicates that the Secretary of State is satisfied, on the basis of information provided by the person, and scientific advice, that the organism qualifies as a precision bred organism.  The UK government will maintain a public register of all notified information. 

Continue Reading UK Draft Bill Permits ‘Precision Bred’ Gene-Edited Plants, Animals and Products

Northern Ireland’s 30 years of ‘Troubles’ were brought to an end by the 1998 Good Friday Agreement (the GFA). The GFA was based on the principle of cross-community support from both nationalists and unionists: a delicate compromise which sought a middle path between the Unionists – who see N Ireland as an integral part of the UK – and the Nationalists – who view the future of N Ireland as lying in reunification with the Republic.

The success of the GFA was underpinned by the fact that both the UK and the Republic of Ireland were in the EU.  Whilst both countries were members of the EU, there was no need for a border between N Ireland the Republic – goods and services could flow unimpeded across the border.  Leaving the EU required a bespoke solution to N Ireland – one that respected the GFA and did not reimpose a physical border between N Ireland and the Republic: a visible manifestation of a divided island.

Squaring the circle of respecting the GFA, whilst taking the UK as a whole out of the EU, was always the most complicated part of Brexit. With the UK outside the EU, a customs border would be required somewhere: it could not be between N Ireland and the Republic, because of the need to respect the GFA and avoid antagonizing the Nationalist community. The only place that border could be therefore, was in the Irish Sea between N Ireland and the rest of GB – which risked irritating the Unionist community.

The Northern Ireland Protocol

The solution to this delicate balancing act was the Northern Ireland Protocol (the NIP), which left N Ireland in the EU Single Market, but brought it out of the Customs Union, enabling N Ireland to have the best of both worlds, with one foot in the UK and the other in the EU.  However, the NIP imposed checks on goods (especially food and medicine) from GB arriving into N Ireland, to ensure they complied with EU standards and avoid the risk of them leaking into the EU Single Market through the back door: these checks have so far been unilaterally postponed by the UK.

Elections add to the complexity…

Continue Reading The UK and the Northern Ireland Protocol (again!)

On 28 April 2022, the Subsidy Control Bill (the “Bill”) received Royal Assent, becoming the Subsidy Control Act 2022 (the “Act”).  The Act lays the basic framework for the new UK-wide subsidy control regime, which is now expected to come into force in Autumn 2022.  Although the Act primarily addresses…
Continue Reading UK Subsidy Control Bill granted Royal Assent

When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).

This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.

  1. The CMA’s merger caseload hasn’t increased as much as expected…

The CMA predicted a 50% increase in the number of merger cases post-Brexit. This has not materialized. Between April 2015 and March 2020, the CMA reviewed on average 60 transactions annually. As the pandemic took hold, this dropped to just 38 between April 2020 and March 2021.

Between April and December 2021, the CMA opened 41 merger investigations, suggesting the CMA will be on course to review 60 transactions by the end of March – a 50% increase on 2020-21, but still down on the CMA’s pre-pandemic caseload.

  1. … but outcomes of investigations into transactions also reviewed by the Commission have generally been consistent.

Since Brexit, the CMA has reviewed 11 transactions which were also notified to the Commission. Only two resulted in different outcomes: one transaction cleared unconditionally by the CMA at Phase 1 required remedies at Phase 2 to obtain Commission clearance; and one where the CMA is undertaking a Phase 2 investigation despite the transaction being cleared with remedies at Phase 1 by the Commission.

While this broad consistency of decisions is likely to be welcomed by businesses, it should also be recalled that:
Continue Reading Trends, developments and divergence from EU law? The CMA’s first year as a global competition authority

The Background

In 1998, the UK and The Republic of Ireland signed the Good Friday Agreement (GFA) bringing to an end 30 years of conflict in N Ireland.  The GFA was possible at least in part because both the UK and Ireland were Member States of the EU, meaning there were no external borders to the EU or the UK in Ireland and enabling EU Law to provide a legal framework.

The GFA, strongly supported by the US and the EU, relied at its core, on mutual acceptance – S Ireland and Irish Nationalists accepted that N. Ireland was part of the UK and the UK agreed to remove physical security infrastructure on the N/S Ireland Border.

The issue of borders is at once problematic and emblematic, with the Unionist community feeling strongly that N. Ireland is part of the UK and the Nationalist community objecting to a N/S Ireland border as a physical barrier to their long-terms hopes of Irish reunification. The GFA accordingly struck a careful crafted and very delicate balance between the two communities.

Brexit…

Brexit upset that delicate balance.  The Nationalist community largely voted Remain, whilst the Unionist community largely voted Leave.  N. Ireland overall voted to remain in the EU.  The UK’s departure from the EU meant that the N/S Ireland border became not only the border between Ireland and the UK, but the only land border between the mainland UK and the EU.

To preserve the benefits of the GFA whilst protecting the EU’s Single Market, the UK and the EU agreed the Northern Ireland Protocol (NIP), which preserved the Common Travel Area between the UK and Ireland and left N. Ireland in the UK’s Customs Union, but the EU’s Single Market – effectively placing the UK/EU border for Customs Controls in the N Sea between GB and N. Ireland for goods ‘at risk’ of entering the EU via N. Ireland. This arrangement avoided a ‘hard border’ between N and S Ireland and meant that N. Ireland was the only part of the UK to benefit from being in both Unions at the same time.

What has happened since January 2020?

The immediate consequences both of Brexit itself and the NIP are an increase in trade between N. and S. Ireland and a reduction in trade between Ireland and the UK as EU produce (inbound and outbound) has increasingly been dispatched by sea direct from S. Ireland to the European Mainland, by-passing the UK which had been used as a land-bridge for Irish exports whilst the UK was in the EU.

These two changes have raised concerns amongst the Unionist community that the longer-term impact of Brexit and of the NIP is to increase the chances of a United Ireland (the GFA allowed for the possibility of a Border Poll should communities so wish). This concern, added to the number of checks on GB/N Ireland exports, has led to a deterioration in security in N Ireland.  It is against this complicated backdrop that the EU and the UK are seeking to tweak the NIP to facilitate trade between GB and N. Ireland and reduce the number of customs checks carried out on that border.

Article 16….

Buried in the midst of the NIP is the now infamous Article 16 which states at paragraph 1 “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade… [one side]… may unilaterally take appropriate safeguard measures”.  Paragraph 2 notes “If a safeguard measure taken…. in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the [other side] may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance.”

UK Complaints

The UK is concerned that the application of the NIP has imposed significant new customs formalities on GB-N. Ireland exporters, resulting in extra costs and discouraging trade.  Under the NIP, after a series of grace periods, the UK was supposed to gradually bring in checks on a broadening range of goods and products exported from GB to N. Ireland.  However, as the impact of those checks became clear, the UK took the decision to unilaterally suspend them.

Of particular concern to the UK government are:
Continue Reading The EU, The UK and The Northern Ireland Protocol (again!)