The Protocol on Ireland/Northern Ireland Contents

Chapter 12: The Joint Committee, Specialised Committee and Joint Consultative Working Group (Articles 14 and 15)

The Withdrawal Agreement Joint Committee

263.The Withdrawal Agreement Joint Committee is responsible for the implementation and the application of the Withdrawal Agreement. It met for the first time on 30 March 2020, and its second meeting is expected to take place on 12 June. The Joint Committee Co-Chairs are Maroš Šefčovič, Commission Vice-President for Inter-institutional relations (with Michel Barnier acting as his alternate) and Rt Hon. Michael Gove MP, Chancellor of the Duchy of Lancaster (with the Paymaster General, Rt Hon. Penny Mordaunt MP, as his alternate). The Joint Committee’s decisions and recommendations will be made by mutual consent and will be binding on the EU and the UK.

264.The EU has provided for Member States to attend meetings of the Joint Committee, and specifically for Ireland to attend meetings both of the Joint Committee, where the Protocol is under discussion, and of the Ireland/Northern Ireland Specialised Committee.217 In its unilateral commitments as part of the January 2020 New Decade, New Approach document, which led to the restoration of the power-sharing institutions in Northern Ireland, the Government made a reciprocal commitment to “ensure that representatives from the Northern Ireland Executive are invited to be part of the UK delegation in any meetings of the UK-EU Specialised or Joint Committees discussing Northern Ireland specific matters which are also being attended by the Irish Government as part of the European Union’s delegation”.218 The Chancellor of the Duchy of Lancaster subsequently confirmed that the Northern Ireland Executive (and the Irish Government, on the EU side) had participated in the first meeting of the Joint Committee on 30 March.219

The Joint Committee’s role in relation to the Protocol on Ireland/Northern Ireland

265.There are various provisions in the Protocol that confer upon the Joint Committee specific tasks with regard to the operation of the Protocol. These are summarised in Table 1.

Table 1: The functions of the Withdrawal Agreement Joint Committee in respect of the Protocol on Ireland/Northern Ireland

Article/Annex

Function

Timescale

Remedy

Article 5(2)

Deciding and establishing the conditions under which commercial processing of goods is to be considered not to fall within the prescribed definition.

Before the end of the transition period, with power to amend its decision at any time.

Not specified

Article 5(2)

Deciding and establishing the criteria under which goods moving into Northern Ireland from the UK, or outside the EU, will be considered at “risk of subsequently being moved into the Union”.

Before the end of the transition period, with power to amend its decision at any time.

Not specified

Article 5(3)

Establishing the conditions under which fishery and aquaculture products will be exempt from duties.

Not specified

Not specified

Article 6(2)

Keeping under constant review the facilitation of trade from Northern Ireland to Great Britain, and to adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.

Ongoing

Not specified

Article 8

Discussing “regularly”, adopting measures for the proper application of, and reviewing the overall application of the provisions on VAT and excise.

Ongoing

Not specified

Article 10(2)/ Annex 6

Determining and adjusting the initial levels of support and initial minimum percentage in relation to exemptions from State aid rules for measures taken by the UK to support the agricultural sector in Northern Ireland.

By the end of the transition period, or within one year of entry into force of the 2021–2027 Multiannual Financial Framework

Suspension of the exemption on measures to support the agricultural sector.

Article 11

Keeping under constant review the impact of implementation and application of the Protocol for the maintenance of the necessary conditions for North-South cooperation, and the possibility of making recommendations to the EU and UK in this respect.

Ongoing

Not specified

Article 12(3)

Determining the practical arrangements under which EU officials will be present alongside the UK authorities responsible for implementing and applying the EU law applied by the Protocol within Northern Ireland.

Not specified

Not specified

Article 13(4)

Addressing the ramifications for Northern Ireland of subsequent EU legislation that falls within the scope of the Protocol but does not amend or replace legislation listed in its Annexes.

Exchange of views within six weeks of a request to do so, leading to a decision within a “reasonable time”.

The EU can take remedial measures from six months after informing the UK about a newly adopted Act.

Article 14

Considering recommendations on the functioning of the Protocol from the Ireland/Northern Ireland Specialised Committee.

Ongoing

Not specified

Article 16(3)/ Annex 7

Discussion, consultation and review in the event that either the UK or the EU takes, or is considering taking, safeguarding measures to address “serious economic, societal or environmental difficulties”.

Immediately after notification of an intention to take safeguarding measures; consultation on safeguarding measures every three months after their adoption.

Safeguarding measures can be taken one month after notification of the intention to do so.

Article 18(4)

In the event that the Northern Ireland Assembly decides not to extend the application of Articles 5–10 of the Protocol, making recommendations to the EU and the UK on necessary measures, taking into account the 1998 Belfast/Good Friday Agreement, with the possibility of seeking the views of the institutions created by it.

Within two years of the Northern Ireland Assembly deciding not to extend the application of Articles 5–10.

Articles 5–10 cease to apply two years after the Northern Ireland Assembly decides not to extend their application.

266.Dr Katy Hayward, Reader in Sociology, Queen’s University Belfast, said that it was “very significant” that the Joint Committee “in effect becomes a managing body for … the Protocol”. She noted that its role had been “greatly increased” in the revised Protocol, and that “its decisions will … have very direct implications for NI-GB relations on practical matters”. Yet the fact that so many matters were left to the Joint Committee to decide increased the uncertainty inherent in the Protocol.220

267.Table 1 shows that the functions of the Joint Committee fall into two broad categories. It is tasked with reaching key decisions in relation to customs and the movement of goods, State aid, the mechanisms for EU supervision, and new EU law within the scope of the Protocol. There is a weaker requirement to review or adopt recommendations in relation to the facilitation of trade between Northern Ireland and Great Britain, North-South cooperation, safeguards, and necessary measures if the Northern Ireland Assembly decides that Articles 5–10 should no longer apply. The provisions on VAT and excise cover both categories.

268.It is also noticeable that the Joint Committee’s powers of decision are narrowly defined. For instance, its power of decision in relation to customs and movement of goods is limited to the definitions of goods ‘at risk’ and processing, and exemptions for fisheries and aquaculture products. Similarly, its only power of decision in relation to State aid is with regard to the exemption of agricultural support. By contrast, the duties to review and adopt recommendations are broadly drawn.

269.The Protocol is also more specific about the timeframe for action and the remedies available in the event that the Joint Committee is unable to reach agreement, in relation to the Joint Committee’s powers of decision. For instance, the Joint Committee is tasked with reaching decisions on the definitions of goods ‘at risk’ and processing before the end of the transition period. Specific and detailed remedies are also set out in relation to State aid exemptions for the Northern Ireland agricultural sector, the application of new EU law within the scope of the Protocol, and safeguarding measures. By contrast, powers of review and to adopt recommendations tend to be open-ended both in terms of timeframe and remedy.

270.The Protocol is, however, notably silent in a number of areas about the remedies available if the Joint Committee cannot reach agreement. This is particularly so in relation to the provisions under Article 5 on customs and movement of goods, including on the definition of goods ‘at risk’. Given that the Joint Committee’s rules of procedure specify that its decisions should be reached by consensus, this raises the question as to the consequences of a failure to reach agreement in areas where the remedy is not specified. In its Command Paper, the Government noted that “the Withdrawal Agreement and the Protocol include rules for settling any disagreements between the UK and the EU on its interpretation.”221 As we have seen, our witnesses stated that in cases where the remedy is not explicitly set out in the Protocol, arbitration under the terms of the Withdrawal Agreement will be the end result.222

271.The Withdrawal Agreement Joint Committee will play a vital (and, under the revised text, substantially enhanced) role in the operation and application of the Protocol on Ireland/Northern Ireland. The Joint Committee will review, adopt recommendations or make decisions on issues key to the functioning of the Protocol, including:

272.In view of the significance of its work, we welcome the Government’s commitment to ensure that representatives of the Northern Ireland Executive participate in meetings of the Joint Committee where the Protocol is under discussion. We note that the Northern Ireland Executive participated in the first meeting of the Joint Committee on 30 March.

273.The Joint Committee’s functions under the Protocol fall into two broad categories: powers of decision; and powers of review and to adopt recommendations. The scope, timeframe and remedies available in the event of non-agreement are all more specific in the case of the Joint Committee’s powers of decision, compared to the open-ended provisions in relation to the powers of review and to adopt recommendations. The ability of the Joint Committee to adjust the operation of the Protocol in a way the UK would wish may therefore be more constrained than the Government allows for.

274.The remedies available in the event that the Joint Committee is not able to reach agreement are undefined in a number of areas. This is particularly so in relation to the provisions in Article 5 on customs and the movement of goods, including the definition of goods ‘at risk’. In the event of a failure to reach agreement in these areas, arbitration under the terms of the Withdrawal Agreement will be the outcome.

The Ireland/Northern Ireland Specialised Committee

275.Article 165 of the Withdrawal Agreement states that, as well as supervising and facilitating the implementation and application of the agreement, the Joint Committee will oversee at least six ‘Specialised Committees’, including one on “issues related to the implementation of the Protocol on Ireland/Northern Ireland.”

276.Article 14 of the Protocol sets out the following tasks for the Ireland/Northern Ireland Specialised Committee:223

277.The Protocol sets out two other specific functions for the Specialised Committee. As we have seen, Article 11(2) envisages the Specialised Committee making recommendations to the Joint Committee as regards the maintenance of the necessary conditions for North-South cooperation, although the Government has legislated to prevent a UK Minister from agreeing to the making of any subsequent recommendation by the Joint Committee.224

278.Article 12(3) states that the Specialised Committee shall make a proposal to the Joint Committee regarding the practical working arrangements regarding the exercise of the rights of EU representatives to be present during any activities of the UK related to the implementation and application of EU law made applicable by the Protocol.

279.Mr Gove confirmed that the work of the Specialised Committee will be conducted by representatives of the Commission and the UK Government. A senior UK Civil Servant, Brendan Threlfall, is the UK lead on the Specialised Committee.225

280.The Specialised Committee met for the first time on 30 April, with a Northern Ireland Executive representative forming part of the UK delegation, and a representative of the Irish Government forming part of the EU delegation.226

281.The Ireland/Northern Ireland Specialised Committee has a number of strategic functions set out in Articles 11(2), 12(3) and 14 of the Protocol. In particular, it has a valuable role as a conduit for dialogue with the Northern Ireland Executive (which will be present at its meetings), the North-South Ministerial Council, the North-South Implementation bodies set up under the Belfast/Good Friday Agreement, and the Equality and Human Rights Commissions operating in Ireland and Northern Ireland. We invite the Government to clarify how the Specialised Committee will engage with these bodies.

The Joint Consultative Working Group

282.Article 15 states that a “Joint consultative working group on the implementation of this Protocol” shall be established. It will be composed of and co-chaired by EU and UK representatives, and will carry out its functions under the supervision of the Specialised Committee, to which it shall report. It must meet at least once a month, and information may be exchanged between meetings.227 However, the UK and the EU did not agree to convene the Joint Consultative Working Group until the first meeting of the Specialised Committee on 30 April.228 No details of its schedule of meetings have yet been released.

283.The Working Group will “serve as a forum for the exchange of information and mutual consultation”,229 but does not have the power to issue “binding decisions”.230 It will be a forum for exchange of information between both parties about implementation measures under the Protocol, for the EU to provide information on planned EU acts within the scope of the Protocol, for the EU to provide information necessary for the UK to comply with its obligations, and for the UK to provide information as required under the Protocol that Member States are required to provide to each other or to EU agencies and institutions.

284.Professor David Phinnemore said that the Joint Consultative Working Group was a unique concept in EU external relations, which presented opportunities to ensure Northern Ireland’s voice was heard and fed into the EU policy-making process. Dr Viviane Gravey also stressed the importance of drawing on the expertise of Northern Ireland civil society, including business groups, trade unions and environmental groups.231 However, Professor Phinnemore noted that the extent to which the Government would permit Northern Ireland voices to feed into the Working Group had yet to be confirmed.232

285.The Government proposed in its Command Paper that the Joint Consultative Working Group should hold a dedicated meeting, involving external stakeholders, on implementation of Article 2 of the Protocol, on the rights of individuals.233

286.The Joint Consultative Working Group, as established by Article 15 of the Protocol, is a unique concept in EU external relations. While it does not have decision-making powers, it will play an important function as the means by which the UK and the EU will exchange information about the implementation of the Protocol, planned EU acts within the scope of the Protocol, and the fulfilment of mutual obligations. Given its less formal mandate, and given the requirement on it to meet at least once a month, it has the potential to act as a productive and intensive facilitator of dialogue, not only between the UK and the EU, but also with stakeholders in Northern Ireland. It will also be in a position to anticipate, and assist in avoiding, potential problems.

287.We therefore regret the delay in convening the Joint Consultative Working Group. We urge both the EU and the UK Government to ensure that this embryonic body is developed to the full, as a means for both sides together to engage with and take account of the concerns of businesses, communities, and civil society in Northern Ireland. We call on the Government to set out more details of how the Working Group will operate, including its schedule of meetings, how it will engage with stakeholders, and how transparency and visibility of its work will be ensured, as well as the steps the Government proposes to take to ensure that the Working Group’s full potential is realised.


217 Council Decision on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 2018/0427 (NLE), 18 October 2019

219 Letter dated 5 April 2020 from Rt Hon. Michael Gove MP, Chancellor of the Duchy of Lancaster, to Lord Kinnoull, Chair of the European Union Committee: https://committees.parliament.uk/publications/691/documents/3409/default/ [accessed 19 May 2020]

220 Oral evidence taken on 29 October 2019 (Session 2019), QQ 8, 11 (Dr Katy Hayward)

222 See paras 102, 166. Article 168 of the Withdrawal Agreement contains an ‘exclusivity clause’ which makes clear that: “For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.” Under Article 170 of the Withdrawal Agreement, if a dispute arises in the Joint Committee, and if no mutually agreed solution has been reached within three months after a written notice has been provided to the Joint Committee in accordance with Article 169(1), the Union or the United Kingdom may request the establishment of an arbitration panel. Under Article 174, the arbitration panel must refer issues raising questions of EU law to the CJEU. If there is no compliance with the ruling of an arbitration panel then temporary remedies can be granted by the panel including a lump sum or penalty payment to be paid to the complainant. Under Article 178, if there is continued non-compliance, or non-payment then the complainant would be entitled, upon notification to the respondent, to suspend relevant obligations under the Withdrawal Agreement.

223 There is some inconsistency between the UK and the EU as regards the name of the Specialised Committee. While the UK Government refers to it as the ‘Ireland/Northern Ireland Specialised Committee’ (INISC), the EU refers to it as ‘the Specialised Committee on the Protocol on Ireland/Northern Ireland’. We have followed the Government’s terminology.

224 See paras 209–210.

225 Evidence taken before the Committee on the Future Relationship with the European Union, 11 March 2020 (Session 2019–21), Q 162 (Rt Hon. Michael Gove MP)

226 Cabinet Office, Ireland/Northern Ireland Specialised Committee 30 April 2020—UK post-meeting statement (30 April 2020): https://www.gov.uk/government/news/irelandnorthern-ireland-specialised-committee-30-april-2020-uk-post-meeting-statement [accessed 19 May 2020]

227 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 15(5)

228 Cabinet Office, Ireland/Northern Ireland Specialised Committee 30 April 2020—UK post-meeting statement (30 April 2020): https://www.gov.uk/government/news/irelandnorthern-ireland-specialised-committee-30-april-2020-uk-post-meeting-statement [accessed 19 May 2020]

229 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 15(1)

230 Withdrawal Agreement (19 October 2019), Protocol on Ireland/Northern Ireland Article 15(2)




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