By Jamie Bryson
It has transpired that yet another Memorandum of Understanding in relation to implementing EU law is in existence, this time between Department of Agriculture, Environment and Rural Affairs (‘DAERA’) and all eleven councils in Northern Ireland.
In at least one council, officials sought to completely mislead elected representatives and lure some naïve unionists into agreeing to the implementation and enforcement of EU law.
This MoU formalises arrangements for local councils to in practice implement the NI Protocol, which has been held by the Court of Appeal to “subjugate” the Act of Union. In 1998 David Trimble (correctly) said “the Act of Union is the Union”.
In this MoU local councils are committed to carrying out “inspections of cold stores, warehouse/distribution and local shops, such as butchers, which may be cutting and selling meat”.
The document formalises the arrangements between DAERA and local councils for enforcing EU law in Northern Ireland, and thus the Protocol.
It is made more incredible due to the fact that DAERA (or at least their Minister) has since realised that OCR 2017/625 does not in fact require such checks between GB and NI, because in that Regulation the requirement is to conduct checks at the entry point into the EU. However, the territory of the United Kingdom is defined as Great Britain and Northern Ireland, therefore moving from GB to NI is not entering the European Union.
In the recent High Court case brought by republican activists against the perfectly legitimate order by Edwin Poots to halt Irish Sea border checks, the Government urged the court to effectively legislate on its behalf and read the United Kingdom as excluding Northern Ireland (despite the plain words of the text saying otherwise).
Notwithstanding that issue, it is difficult to see how DAERA is not now compelled to terminate this agreement with local councils, based as it is upon a deception as to the requirements of Regulation 2015/625.
This agreement was voted through by Ards and North Down Borough Council in June 2021, and crucially the agreement is subject to a mandatory yearly review. This review was not utilised this year (June 2022) by Ards and North Down Borough Council, dominated by unionists, to seek to frustrate or prevent the continued arrangement between DAERA and the council, or its continued implementation which they had shamefully voted through in August 2021.
Extraordinarily, council officials told elected representatives (all of whom who fell for it other than Cllr Cooper, the late Alderman Menagh and Cllr Smith) that the Memorandum of Understanding had “nothing to do with the NI Protocol”.
It is hard to see how this was anything other than deliberately misleading. And regardless of the entirely inaccurate claims of council officials, it raises serious questions as to competency that many unionist councillors took these plainly absurd claims by officials at face value.
The MoU expressly states at Clause 2.1 that it relates to “adherence to EU regulatory requirements”.
However, one does not even need to the body of the MoU, the opening briefing page covering note states in plain words, under “subject”:
“Memorandum of Understanding (MoU) regarding the enforcement of EU marketing standards legislation (beef, eggs and poultry meat) by District Councils”
It is the Northern Ireland Protocol which continues to place such obligations upon Northern Ireland, and Northern Ireland alone within the United Kingdom.
The minutes of the relevant council meeting are, to be frank, utterly embarrassing. A council official is telling unionist representatives that the enforcement of EU regulations is nothing to do with the Protocol, and furthermore claiming the EU legislation was “set in stone” before the Protocol.
The objective of the Protocol is to ensure the continued applicability of legislation which was in place before UK’s exit, as well as the application of new EU law.
In an incredible situation, seemingly the assurance that the EU law was in place before the Protocol is seen as defining. As already pointed out, the Protocol is designed to ensure EU law- which was already in existence- remained in place after the rest of the UK left the EU.
It is incredible unionist representatives did not do something as basic as a google search to read, for example, the first piece of legislation, Regulation 1308/2013.
There is a helpful explanation on DAERA’s own website. It states:
Following the end of the transition period, EU food law, including marketing standards, continues to apply to all food produced and marketed in Northern Ireland. EU marketing standards (MS) are set out primarily in Regulation (EU) No 1308/2013, commonly referred to as the Common Market Organisation Regulation, and associated delegated and implementing regulations.
GB is now considered a third country by the EU. Consequently, Northern Ireland is required to apply Marketing Standards checks at NI POEs as set out in the Compliance Protocol.
The Regulations being enforced by the MoU flow from the fact that due to the Protocol, Great Britain is treated as a third country. It is the very beating heart of the Irish Sea border.
The compliance Protocol, referred to in DAERA’s own briefing in relation to Regulation 1308/2013, states:
1.2 Under the Protocol, Northern Ireland is required to maintain regulatory alignment with the EU on the application of Sanitary and Phytosanitary (SPS) measures. SPS measures refer to the system in place to manage animal, plant and public health risks and maintain traceability, safety, sustainable sourcing and standards in the food chain. They are comprised of a wide range of controls including regulation, infrastructure and systems of certification, auditing, and inspection. These controls have the primary aim of protecting the internal market of the EU, including the Island of Ireland, from anything that might negatively impact animal, plant or public health.
1.3 Furthermore, following the end of the transition period, EU food law, including marketing standards, continues to apply to all food produced and marketed in Northern Ireland. This means that, in addition to SPS measures, some products are also subject to specific EU marketing standards which establish definitions, minimum product standards, production methods, sales descriptions, product categories and labelling requirements. These standards apply at all stages of the marketing chain and are intended to protect consumers and to facilitate the trade of applicable goods on the single market. Products subject to marketing standards regulations include fruit and vegetables, hops, wine, beef and veal, eggs in shell, hatching eggs and chicks, olive oil and poultry-meat.
1.4 SPS goods must only enter Northern Ireland through approved Points of Entry (POEs), each of which has been designated by the EU to carry out checks on specific categories of goods. 1.5 Since the EU Exit transition period ended on 31 December, the EU has considered Great Britain (GB) to be a Third Country. Consequently, under the terms of the Protocol, Northern Ireland (NI) is required to apply SPS checks on goods entering the EU regulatory zone from GB, in line with those checks prescribed for Third Countries as currently set out in EU law, for example, in the Official Controls Regulation (EU) 2017/625 (OCR).
It cannot be emphasised enough now misleading the officials briefing was, and how naïve some unionist councillors who agreed this have been. Quite literally five minutes of reading even the first couple of the relevant Regulations would have illuminated the absolute absurdity of suggesting their continued application was “nothing to do with the Protocol”. They continue to apply precisely because of the Protocol.
There is an absolute urgency for every unionist elected to local council, particularly in unionist dominated councils, to take all steps necessary to frustrate, impede and where possibly completely destroy every manifestation of the NI Protocol.
In every unionist council, motions must be brought to end all of these arrangements, and forced to a recorded vote. At that point all unionists will have to take a decision: do they truly oppose the Protocol, or do they not.
It is time to join the fight in every lawful way possible, or get out of the way.