Brexit and a UK-US trade deal, Northern Ireland protocol bill and the retained EU Law dashboard
On 6th June 2022, Callum Jones, US Business Correspondent of The Times, had an article published in The Times in which he argued that “taking a state-by-state approach is no substitute for a UK-US trade deal”.
Mr Jones’ thesis is that the UK’s Government’s perceived plan to encourage the US Federal Government towards a free trade deal, by signing up individual US states to memorandums of understanding, may not work because these memorandums of understanding tend to be vague and not deal with issues such as tariff reductions or removals, which are the responsibility of the US Federal Government rather than individual states. It is thought, however, that such memorandums of understanding can address issues such as mutual recognition of professional qualifications and support in the market for public procurement contracts.
The first US state to sign up to a memorandum of understanding with the UK was Indiana and other states likely to sign up to such memorandums of understanding with the UK may include Oklahoma, North and South Carolina and Texas.
It does appear, however, that, for the US Federal Government, striking a US-UK country to country deal is not a high priority at the moment.
Mr Jones’s conclusion is that for these memorandums of understanding to be meaningful they must focus on substance and not style and that “the state–by–state approach, provided it’s executed well, may genuinely enhance Britain’s post-Brexit agenda. Removing economic barriers could directly lift bilateral trade and investment with the US. Developing meaningful political relationships across the country could indirectly bolster the prospects of a Federal free-trade agreement, creating a loose coalition of support. But it is no panacea. A single pact is not a milestone.”
Brexit and the Northern Ireland Protocol Bill
On 13th June 2022, the UK Government introduced the Northern Ireland Protocol Bill (“the Bill”) to the UK House of Commons.
The Bill is, to say the least, controversial in its objective to override parts of the Northern Ireland Protocol and has provoked threats of litigation and sanctions from the EU as well as an excoriating editorial from The Times on 14th June 2022 which concluded with the statement that: “Besides, overriding the protocol in domestic law does not alter Britain’s obligations under an international treaty. At best, the government’s actions set the stage for years of acrimonious legal disputes, at worst they risk a ruinous trade war. Far better even now that both sides return to the negotiating table and reach an agreed solution.”
The Bill, as presented to the UK House of Commons, runs to some 26 clauses and in clause 1 contains what it usefully describes in the title to the clause as an “Overview of main provisions”. Clause 1 provides as follows (allowing for typos):-
“This Act –
- provides that certain specified provisions of the Northern Ireland Protocol do not have effect in the United Kingdom;
- gives Ministers of the Crown powers to provide that other provisions of the Northern Ireland Protocol do not have effect in the United Kingdom;
- provides that enactments, including the Union with Ireland Act 1800 and the Act of Union (Ireland) 1800, are not to be affected by provisions of the Northern Ireland Protocol that do not have effect in the United Kingdom;
- gives Ministers of the Crown powers to make new law in connection with the Northern Ireland Protocol (including where provisions of the Protocol do not have effect in the United Kingdom)”.
These are sweeping provisions, to which perhaps the accompanying UK Government press release of 13th June 2022 gives context by stating:
“The Northern Ireland Protocol Bill will allow the government to address the practical problems the Protocol has created in Northern Ireland in 4 key areas: burdensome customs processes, inflexible regulation, tax and spend discrepancies and democratic governance issues….
The legislation enables the government to bring forward durable solutions in each of the 4 key areas. The solutions are:
- green and red channels to remove unnecessary costs and paperwork for businesses trading within the UK, while ensuring full checks are done for goods entering the EU
- businesses to have the choice of placing goods on the market in Northern Ireland according to either UK or EU goods rules, to ensure that Northern Ireland consumers are not prevented from buying UK standard goods, including as UK and EU regulations diverge from to time
- ensure Northern Ireland can benefit from the same tax breaks and sending policies as the rest of the UK, including VAT cuts on energy-saving materials and Covid recovery loans
- normalise governance arrangements so that disputes are resolved by independent arbitration and not by the European Court of Justice.”
In a separate document that the UK Government issued on 13th June 2022, entitled “Northern Ireland Protocol Bill: UK government legal position”, the UK Government based its case that the Bill, when enacted, would not breach international law on the so-called “doctrine of necessity “ which “ provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions”.
The applicability and relevance of the “doctrine of necessity” in the circumstances of the Northern Ireland Protocol are likely to be hotly contested by many.
An evolving situation!
Brexit and the Retained EU Law Dashboard
On 22nd June 2022, Jacob Rees-Mogg MP, the UK Government Minister for Brexit Opportunities and Government Efficiency, published the outcome of the UK Government review launched in September 2021 into the substance of so-called Retained EU law (REUL) to determine which departments, policy areas and sectors of the economy contain the most REUL.
The accompanying UK Government press release of 22nd June 2022 (described as a “research and analysis” document) refers to this outcome of the review being in the form of an authoritative “Retained EU law dashboard”, which is publicly accessible. The press release goes on to describe the nature and functionality (and indeed the limitations) of the dashboard in the following terms:-
“The catalogue of REUL can be accessed through an interactive dashboard. There are multiple options to explore and filter over 2,400 pieces of legislation which have been collected as part of this cross-government collaborative exercise. This exercise has also uncovered where retained EU law is concentrated in over 300 policy areas across 21 sectors of the UK economy. This catalogue is not intended to provide a comprehensive account of REUL that sits with the competence of the devolved administrations, but may contain individual pieces of REUL, which do sit in devolved areas.”
On next steps, the press release goes on to explain:-
“Creating this catalogue of REUL is the first step in accelerating regulatory reform and reclaiming the UK statute book. The government will continue developing this comprehensive record of where EU-derived legislation remains and will work to identify more legislation which can be amended, repealed or replaced. This dashboard will document the government’s progress against that aim. As such this is the first iteration of Cabinet Office’s interactive REUL dashboard. Going forward the dashboard will be updated on a quarterly basis, as REUL is repealed and replaced, or more REUL is identified”.
Whether this is a useful project or a waste of government resources, hopefully time will tell!
Meanwhile, on 23rd June 2022, The Times reported that Mr Rees-Mogg had said, in the context of the Retained EU law dashboard and the proposed Retained EU law Bill (also known as the Brexit Freedoms Bill), that Britons would be able to enjoy sparkling wine in plastic bottles and bed and breakfast establishments in the UK would be able to sell fishing trips without registering as tour operators, as part of an overhaul of EU regulations still in UK law. The Times also reported that he had said that by culling hundreds of “minor obstacles to doing business” the UK Government hoped to boost the UK economy – however, after a Cabinet dispute, he had failed to make a commitment to a five–year sunset clause on retained EU laws. According to The Times report, Mr Rees-Mogg had also insisted that the move to reduce the burden on business after Brexit would not impinge on maternity and employment rights or reduce environmental protections.
We shall see what happens!
Disclaimer: Nothing in the Legal Insights section and this blog is intended to provide legal or other professional advice and, if readers are interested, they should consider taking separate legal or other professional advice accordingly.
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