April 19, 2021
The report finds that the UK/EU Joint Committee, which was set up to manage the Withdrawal Agreement, has considerable legal and political importance, mainly because of the Northern Ireland Protocol. The Joint Committee oversees the implementation, application and interpretation of rules under the Withdrawal Agreement, including the Northern Ireland Protocol.
The report says that the Government has provided Parliament with information about the decisions of the UK/EU Joint Committee which has been both incomplete and too late. This means that the Scrutiny Committee has not been able to exercise proper democratic scrutiny. The report repeatedly emphasises the importance of the UK/EU Joint Committee, especially as it can make legally binding decisions that concern the people and businesses of Northern Ireland.
The report finds that there is significantly more that the Government could, and should, be doing to facilitate democratic oversight. For example, it calls on the Government to provide detailed agendas ahead of UK/EU Joint Committee meetings and to make the minutes of these UK/EU meetings publicly available. The report also asks that Government analyses given to Parliament about EU legislation relevant to Northern Ireland, known as “Explanatory Memoranda”, should be submitted in sufficient time and with adequate detail for it to consider them before the joint UK/EU Joint Committee takes any relevant binding decisions.
The report identifies several areas where it says it needs further and better information in order to exercise proper parliamentary scrutiny:
- “at risk” goods: these are goods imported into Northern Ireland, but which may then be “at risk” of ending up in Ireland and avoiding the tariffs required of goods entering the EU’s Single Market; the Northern Ireland Protocol includes a very restrictive definition of goods “not at risk”, meaning that EU tariffs are potentially applicable on an indeterminate number of imports into Northern Ireland from Great Britain;
- the arbitration panel: if the UK and the EU have disagreements about the Withdrawal Agreement and a resolution cannot be reached through consultations in the UK/EU Joint Committee, they can request the establishment of an arbitration panel drawn from a pool of members named by the UK and the EU; the pool of UK members to be appointed to the panel was communicated to the Scrutiny Committee just one day before the list was adopted by the Joint Committee; there had been no communication on this subject at all prior to the list being made available; and
- “level playing field” issues: the UK and the EU interpret the applicability of EU state aid rules under the Northern Ireland Protocol in very different ways; this is concerning as it may impact on the willingness of companies to accept subsidies, or of state authorities to grant them; the EU’s interpretation of the rules could in theory result in the EU intervening with respect to UK subsidies that only have a minimal, or even “merely potential” impact on trade between Northern Ireland and the EU; by contrast, the UK interpretation is that EU intervention would only be permissible if the EU Commission could prove a “real and material impact” on EU-Northern Ireland trade in goods.
The Scrutiny Committee has referred various questions to the Government to address the above concerns. To read the Committee’s summary of the report in full and for a link to the full report, click here.