Twenty-seventh Report of Session 2019–21 Contents

1Northern Ireland Protocol: Joint Consultative Working Group1

This EU document is politically important because:

  • it concerns how the EU will inform the UK about planned EU laws affecting Northern Ireland in the future and how the EU and UK will discuss the implementation of EU laws within the scope of the Ireland/Northern Ireland Protocol; and
  • the Government commits to engaging with Parliament and the Northern Ireland Executive and Parliament on future arrangements for governance of the Withdrawal Agreement and the Protocol.

Action

  • Write to the Chancellor of the Duchy of Lancaster.
  • Draw to the attention of the Committee on the Future Relationship with the EU and the Northern Ireland Affairs Committee.

Overview

1.1The Agreement on the UK’s withdrawal from the EU requires that Northern Ireland continue to apply a number of EU laws relating largely to the movement of goods, including any future changes and additions to those laws. As the UK is no longer part of internal EU discussions on draft EU laws, nor has a vote on them, the Withdrawal Agreement establishes a Joint Consultative Working Group (JCWG) to ensure that there is a channel of communication between the EU and UK on draft EU laws relevant to Northern Ireland.

1.2The JCWG has no decision-making powers, other than adoption of its own Rules of Procedure, and it reports to the Specialised Committee on Northern Ireland, which sits under the UK/EU Joint Committee which oversees the overall application and implementation of the Withdrawal Agreement. The tasks of the JCWG, as set out in Article 15 of the Ireland/Northern Ireland Protocol annexed to the Agreement, include:

1.3The Working Group will also be the initial forum for discussions on new EU legal acts which the EU considers fall within the scope of the Protocol, but which do not amend or replace legislation already listed. While it would be for the UK Government to decide whether to accept further expansion of the body of EU rules that applies under the Protocol,2 the EU can take remedial measures if the UK does not accept the application of the new rules (Article 13(5) of the Protocol).

1.4In recent correspondence with us,3 the Government has highlighted the relevance of the JCWG as a forum for discussing new or amending EU laws which fall within scope of the Protocol.

1.5The JCWG requires a set of Rules of Procedure, which are to be adopted at its first meeting. In its document, the Commission proposes that the Union should support the adoption of the Rules of Procedure by the JCWG. The draft Rules of Procedure cover arrangements such as: the chairing of meetings (to be co-chaired by the EU and UK); participation; agendas; minutes; and confidentiality. There is no limit on the numbers from each side who may participate in the meetings. Furthermore, there is provision for “experts or other persons who are not members of delegations” to attend meetings in order to provide information on a particular subject.

1.6In terms of confidentiality, there is no provision to make agendas public and it is only provided that the summaries of minutes may be made public. As a general rule, the meetings themselves will be confidential.

1.7In his Explanatory Memorandum (EM), the Chancellor of the Duchy of Lancaster (Rt Hon. Michael Gove MP) signals the UK’s support for the Rules of Procedure, which he describes as “proportionate” and in line with those for the Joint Committee and the Ireland/Northern Ireland Specialised Committee. The Minister observes that, for the most part, the Rules focus on the mechanics of the meetings of the JCWG but the Minister highlights the obligation on the Secretariat to produce an annual report on the work of the JCWG to be sent to the Ireland/Northern Specialised Committee.

1.8The Minister notes that the JCWG will have an important role to play in being the body through which the EU informs the UK about amendments and replacements to Union law listed in the Annexes to the Protocol, and through which the UK, says the Minister, has a formal opportunity to influence the development of EU law where it is relevant to the UK in this context.

1.9As far as composition of the UK delegation is concerned, the Minister says that the Government has committed to inviting officials from the Northern Ireland Executive, in line with the commitments made in New Decade, New Approach for the Withdrawal Agreement Joint Committee and the Ireland/Northern Ireland Specialised Committee.

1.10In conclusion, the Minister confirms that officials “will continue to work with the Parliamentary scrutiny committees and the Northern Ireland Executive and Assembly as we design the overall governance process for the Withdrawal Agreement and Protocol post-transition period”.

1.11The Minister wrote separately to us to draw attention to the EM and to re-iterate the commitment to working with us and others to design the overall governance process for the Withdrawal Agreement and Protocol post-Transition.

Our assessment

1.12We welcome the confirmation that officials from the Northern Ireland Executive will be invited to participate in the JCWG.

1.13We consider that the JCWG should have an important role to play in providing information and advice to the Specialised Committee on the Northern Ireland Protocol and in discussing EU laws which fall within the scope of the Protocol or new laws which may need to be added to the list of EU laws applicable to Northern Ireland. Whether it will do so depends on two important aspects.

1.14The first of those is what the respective parties (the UK and the EU) consider a “planned EU act” to be. An EU act can be “planned” at any stage from its original inception within a non-legislative policy paper through to the point after its political agreement but before formal adoption of the final text. We will ask the Minister at what stage of a planned EU act the UK would expect to be informed and whether the UK would expect to receive information regularly during the legislative process.

1.15The second aspect is the extent to which the JCWG is expected to be a forum of debate on planned EU acts relevant to Northern Ireland. As the Protocol itself does not explicitly provide for debate on planned EU laws relevant to the Protocol, we will seek clarity from the Minister on the basis for his assertion that the JCWG will give the UK a “formal opportunity to influence the development of EU law”.

1.16We welcome the Minister’s commitment to engaging with us and others—including other Select Committees, the Northern Ireland Assembly and the Northern Ireland Executive—to design “governance arrangements” for the Withdrawal Agreement and the Protocol. As such arrangements are already provided for in the Withdrawal Agreement, we assume that the Minister is referring to parliamentary scrutiny arrangements, but we will invite him to confirm our interpretation.

1.17We are clear that some oversight of the work of the JCWG will be an important part of future parliamentary scrutiny arrangements. We therefore note with interest the proposed rules on transparency of the JCWG. We understand the rule that the proceedings should be confidential, but it is important that information is available about what is being discussed by this Group, given its important role in exchanging information on planned EU laws relevant to Northern Ireland. We note that there is no provision to make the agendas public in advance of meetings, nor for consistent publication of the minutes, or even of any outcome of the meetings. The draft Rules of Procedure provide only that a summary of the minutes may be published.

1.18We will therefore seek a commitment from the Minister to work with the Commission to ensure that agendas are made public in advance of meetings and to ensure that minutes of the meetings are consistently published.

1.19Arrangements for scrutiny—by the Northern Ireland Assembly and by Parliament—of implementation of the Withdrawal Agreement and the Protocol, including EU laws falling within the scope of the Protocol are an important and urgent matter. Core to any arrangements will be the timely sharing of information with all of the relevant interlocutors.

1.20Finally, the JCWG will be an important channel through which the EU can inform the UK of relevant planned EU acts, but we expect the Government to apply its own autonomous mechanisms to monitor EU law so that it is not reliant on information from the EU. We will ask the Government for detail on those mechanisms.

Action

1.21We have written to the Minister as set out below, raising the queries that we identified in our Assessment.

1.22We are drawing this document and our letter to the attention of the Committee on the Future Relationship with the EU and the Northern Ireland Affairs Committee.

Letter from the Chair to the Chancellor of the Duchy of Lancaster (Rt Hon. Michael Gove MP)

We have considered your Explanatory Memorandum on the above EU document.

We agree that the Joint Consultative Working Group (JCWG) should have an important role to play in providing information and advice to the Specialised Committee on the Northern Ireland Protocol and in discussing EU laws which fall within scope of the Protocol, including new laws which the EU considers should be added to the list of EU laws applicable to Northern Ireland.

We consider that the relevance of the JCWG depends on what the UK and EU consider a “planned EU act” to be and the extent to which the JCWG becomes a forum for debate. We therefore ask:

We welcome your commitment to engaging with us and others to design “governance arrangements” for the Withdrawal Agreement and the Protocol. As the Agreement already provides for such arrangements, we ask that you confirm that this commitment relates to arrangements for the domestic parliamentary scrutiny of the Withdrawal Agreement and Protocol. We are clear that some oversight of the work of the JCWG will be an important part of any such arrangements. On that matter, we note with interest the proposed rules on transparency of the JCWG. We understand the rule that the proceedings should be confidential, but it is important that information is available about what is being discussed by this Group, given its important role as a channel of communication concerning planned EU laws relevant to Northern Ireland. We ask that you commit to working with the Commission to ensure that agendas are made public in advance of meetings and to ensure that minutes of the meetings are consistently published.

Arrangements for scrutiny—by the Northern Ireland Assembly and by Parliament—of implementation of the Withdrawal Agreement and the Protocol, including EU laws falling within the scope of the Protocol are an important and urgent matter. That must include both draft laws amending or replacing laws already included in the Annexes to the Protocol and proposals for new laws which the EU might consider fall within the scope of the Protocol. We therefore look forward to the discussions that you mention with officials concerning “governance”, which we assume to mean parliamentary scrutiny. Core to any arrangements will be the timely sharing of information with all of the relevant interlocutors.

Finally, the JCWG will be an important channel through which the EU can inform the UK of relevant planned EU acts, but we expect the Government to apply its own autonomous mechanisms to monitor EU law so that it is not reliant on information from the EU. We would welcome detail from you on the mechanisms that are in place across Government to monitor ongoing EU law developments.

We ask that you respond within ten working days.


1 Proposal for a Council Decision on the position to be taken on behalf of the EU in the Joint Consultative Working Group established by the Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community as regards the adoption of its rules of procedure; 11643/20, COM(20) 636; Legal base: Art 50(2) TFEU and Article 218(9) TFEU, QMV; Department: Cabinet Office; Devolved Administrations; ESC number: 41569.

2 The EU has already proposed a list of additions to the EU legislation which will remain applicable in Northern Ireland under the Protocol, but argues that these should have been included when the Protocol was drafted. They are therefore being considered under a special procedure to correct “errors and omissions” in the Protocol. The Government has not so far accepted the proposed additions. See for more information our Report on Decision 1/2020 of the UK-EU Joint Committee (HC465, 17 June 2020).

3 Such as Letter from Rebecca Pow MP to Sir William Cash MP concerning the phase-out of dental amalgam containing mercury, and Letter from Victoria Prentis MP to Sir William Cash MP concerning the Farm to Fork Strategy.





Published: 10 November 2020