The Windsor framework intended to supplement the Northern Ireland protocol was launched with fanfare on Monday and, as with so many political announcements, greeted as a triumph. It’s usually a few days or weeks later that the details begin to emerge and the gloss starts to come off.
Many of those hailing Rishi Sunak’s new deal will not have read beyond the press releases, and looking at the documents published by the two sides, it’s not hard to see why. There is a bewildering plethora of fine print on the EU website, as if the authors were intent on creating a smokescreen to delay scrutiny while making good their escape. The UK version is the same but with added spin.
The documents include a joint UK-EU statement, European Commission president’s statement, prime minister’s statement, joint political declaration, press releases (two), Q&A memo, factsheet, explainers (eight), joint declarations (six), proposals for EU Council decisions (two), proposals for a regulation of the EP and the EU Council (three), commission implementing regulation, EU position papers (two), EU statement on engagement with Northern Ireland stakeholders, draft decisions of the joint committee and the joint consultative working group (two), draft recommendations of the joint committee (two), draft UK unilateral declarations (four), UK government legal position and finally, a UK command paper.
The list was compiled by Katy Hayward, professor of political sociology at Queen’s University Belfast. Only intrepid academics and the DUP will bother reading it all.
Labelling of ‘retail goods’
One very minor aspect which has not been mentioned except by the CEO of the Cold Chain Federation, Shane Brennan, is the labelling of certain goods destined for Northern Ireland as suggested last year by Naomi Long of the Alliance Party, inter alia.
The chair of Marks & Spencer, Archie Norman, wrote to James Cleverly the foreign secretary in January to warn that this labelling would mean “overbearing and prohibitive costs” for retailers. He will be disappointed, since labelling is now baked in to the new deal. Details are contained in the 48 pages of the proposals for a regulation of the European Parliament and the EU Council.
The label will read “NOT FOR EU” and will appear on a range of ‘retail goods’ sold and consumed in Northern Ireland, thus forever reminding citizens in the province that some of their food may not quite come up to EU standards and shouldn’t be taken across the border.
These labels must be “attached to the packaging in a conspicuous place in such a way as to be easily visible, clearly legible and indelible. It shall not be in any way hidden, obscured, detracted from or interrupted by any other written or pictorial matter or any other intervening material”.
What needs labelling?
The rule applies to goods that are “delivered at distribution terminals, including terminals distributing retail goods under controlled temperatures, supermarket distribution centres, wholesale outlets, points of sale, or that are delivered directly to the final consumer, including by catering operators, at factory canteens, by institutional catering, by restaurants and by other similar food service operators and shops”.
The ‘goods’ include: (i) products of animal or plant origin; (ii) plants other than plants intended for planting, as listed in an implementing act adopted in accordance with Article 72(1), Article 73 and Article 74(1) of Regulation (EU) 2016/2031; (iii) composite products; (iv) food other than that referred to in (i), (ii) and (iii); (v) food contact materials; (vi) ready-to-sell pet food and dog chews falling within the scope of Regulation (EC) No 1069/2009.
Where do the labels go?
The labels must go in three separate places. Firstly, on individual packs. Secondly, on the “smallest container of the same pre-packed retail goods” (on a shelf-ready pack or box) and finally, also be placed “next to the price tag or equivalent on the shelves in the establishment where the retail goods are presented to the final consumer”.
There are also to be “sufficient number of posters” and they “shall be visibly displayed in the vicinity of the retail goods informing the consumers that those retail goods are only intended for sale to the final consumers in Northern Ireland and are not to be subsequently moved to a Member State”.
When does this apply?
From October this year, all applicable retail products need to be properly labelled at the box level and on the retail shelf next to the price. In addition, some specific products will need to be labelled at the individual pack level. These include pre-packed meat, pre-packed meat products and meat packed on sales premises – plus pre-packed milk, pre-packed dairy products and dairy products packed on sales premises including pasteurised milk; pasteurised cream; sour cream; crème fraiche; pasteurised buttermilk; unpasteurised (raw) cheese and quark/cottage cheese.
By October 2024, “all milk and dairy products shall bear an individual marking”. And by October 2025, all ‘retail products’ will need to be individually labelled except those listed in Part 2 of Annex V, which are shelf-stable composite products complying with Article 3(1) of Commission Delegated Regulation (EU) 2021/63069.
All will continue to need marking at both the box and shelf levels.
What does this mean?
It will probably mean we in the rest of the UK will also start to see “NOT FOR EU” on individual packs of meat and milk based products. Producers based in GB supplying Northern Ireland will not be aware at the point of production where the goods will be dispatched to and will probably opt to have “NOT FOR EU” printed on all individual pack labels and multi-pack cartons.
It will be a constant reminder of what the UK is losing.
Border checks reduced but not eliminated
It would appear that checks at the Northern Ireland border are not eliminated altogether. For consignments that comply with these labelling requirements, there are “special rates of identity checks” which presumably applies to goods using the so-called ‘green’ channel.
These special rates of identity checks are reduced to 8% (one in 12) of all consignments for milk and dairy products and 5% (one in 20) of all consignments for the rest. A consignment is defined as a quantity of goods covered by the same “official certificate, official attestation or any other document” and conveyed by the same means of transport.
The framework says that each consignment of retail goods shall be accompanied by a general certificate issued by “the competent authorities of the United Kingdom, and which shall certify that the retail goods in the consignment comply with the requirements laid down in paragraph 1, points (a) to (f)”.
Paragraph 1 sets out a long list of requirements, including that the goods are only dispatched from listed establishments in parts of the UK (other than Northern Ireland) and received by listed establishments in Northern Ireland, and are “presented for official controls at SPS Inspection Facilities of first arrival in Northern Ireland” in accordance with EU Regulation 2017/625 (aka, official controls).
Which means every shipment to the province through the green channel has to be entered on a UK Government computer system and it is the government who is doing the certifying that all the conditions are met.
Does the framework meet all the DUP’s seven tests?
The deal means there is still an Irish border (red channel) and checks will still take place albeit not at the border (green channel), but as spot checks at the dispatching and receiving ends in what the EU refers to as increased market surveillance. Green channel users at both ends must be registered trusted traders and for each item on each consignment provide around 21 key data elements (a “super-reduced” data set), including the possibility to use the 6 or 8-digits of the Combined Nomenclature (‘CN’) code only, depending on the type of goods. The data will be available to the EU in real-time.
The framework appears to fall well short of two of the DUP’s seven tests. To meet test No 3, the new arrangements must not constitute a border in the Irish Sea and to meet No 5, there must be no checks on goods going from Northern Ireland to Great Britain or from Great Britain to Northern Ireland. All this is undeniable.
The border may be less intrusive and the frequency of checks at the border reduced but the price of that is what a reporter on the Belfast Telegraph who has looked at the details described as a “phenomenally bureaucratic new system” – of which labelling of retail goods is but a small part.
We wait to hear what the DUP will make of it all. Given that they must consult with their grassroots support, a forthcoming statement could take “months” to emerge.