Richard North, 09/08/2017  

Following several pieces on this blog about the effect of Brexit on food exports, I've been passed a tiresome e-mail from Tory MP Heidi Allen's assistant, responding to one of this blog's readers who wrote to Allen about Regulation (EU) 2016/429.  

This Regulation embodies the provisions which set the requirements for third country imports of animals and products of animal origin. These are the rules which will apply to the UK once we leave the EU, and thereby will prevent us from exporting after we leave the EU, until they have been satisfied. 

From Heidi Allen's office, though, comes the observation that the Regulation does not come into force until April 2021, with the comforting nostrum that "negotiations are still ongoing". Allen believes "it is highly likely that these regulations will form the subject of discussion as the UK seeks to form a new trade deal with the EU. They "will be provided for - if agreed to - as part of the legislation required for our withdrawal deal".

This is from an MP that has been sent all the relevant information from this blog and yet this is the response we get. Not least, there is a failure to understand that the provisions are already in force. Regulation (EU) 2016/429 merely consolidates, amends and merges a whole raft of legislation spanning the period 1964 to the present, bring the entire complex under one roof.

If Heidi Allen and her staff want to wade through the relevant legislation currently in force, here is a partial list:

Directive 64/432/EEC, Council Directive 77/391/EEC, Council Directive 78/52/EEC, Council Directive 80/1095/EEC, Council Directive 82/894/EEC, Council Directive 88/407/EEC, Council Directive 89/556/EEC, Council Directive 90/429/EEC, Council Directive 91/68/EEC, Council Decision 91/666/EEC, Council Directive 92/35/EEC, Directive 92/65/EEC, Council Directive 92/66/EEC, Council Directive 92/118/EEC, Council Directive 92/119/EEC, Council Decision 95/410/EC, Council Directive 2000/75/EC, Council Decision 2000/258/EC, Council Directive 2001/89/EC, Council Directive 2002/60/EC, Council Directive 2002/99/EC, Council Directive 2003/85/EC, Council Regulation (EC) No 21/2004, Council Directive 2004/68/EC, Council Directive 2005/94/EC, Directive 2006/88/EC, Council Directive 2008/71/EC, Directive 2009/156/EC, Directive 2009/158/EC, and Regulation (EU) No 576/2013 of the European Parliament and of the Council.

But just to complete the picture, we also have to take note of Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission and Regulation (EC) No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.

The points that emerge from all this is the same as the points listed in Regulation (EU) 2016/429. Primarily, once we leave the EU and become a "third country", we are no longer authorised to export to EU Member States until we have been approved by the Commission and included on the list of third countries.

Currently the list, which is amended from time to time, is set out in Commission Implementing Regulation (EU) No 2016/759. The current list has been amended by Commission Implementing Regulations 2016/1793 and 2017/731 and, as any perceptive observer will be able to determine, the UK is not on that list.

Given the laborious process of wading through the legislation currently in force, I have used the template set out in Regulation (EU) 2016/429 for the sake of simplicity and convenience. It is in a more easily accessible form - which was the whole point of the new Regulation, simplifying a raft of legislation that has become so complicated that it is almost impossible to understand.

But whether the new version or the old, it amounts to the same thing. As a "third country" (and only when we have assumed that status) we will have to apply to be included on the list before we can resume our exports. That means following the procedures set out here.

The other point to make is that none of this is negotiable. There is not in any sense any mechanism by which the legislation can be discussed or amended. It will apply in its totality to the UK, once we leave the EU. Whether we have a trade deal or not, the provisions will apply.

And this is something we seem to be having the greatest difficulty in conveying to the likes of Heidi Allen and most other MPs. Those who are not sheltering in their own personal fog of ignorance seem to be in denial. They simply cannot seem to be able to come to terms with the consequences of the UK leaving the EU.

The thing here, of course, is that is progression – from EU Member State to third country – is unique. Plenty of third countries have become EU Member States but none have done it in reverse.

And those that have always been third countries have grown up with the EU rules as they have emerged and gradually toughened. As each step has been introduced, there have been implementation provisions, allowing trading partners to adjust, and for Member States to introduce the necessary administrative changes.

Never before has there been a situation where a country with a pre-existing high level of trade as suddenly had to go through all the procedures from scratch, starting in effect with a blank piece of paper.

Therein lies the point. At the moment, the UK is an EU Member State. At the stroke of midnight that brings us to exit day, we cease to exist as a Member State. In its place is created a brand new "third country" which at that time will not exist on any EU record. In practical terms, it will be as if an entirely new country had suddenly been dropped into the sea off Europe.

With this in mind, the legal way out is for the UK to negotiate a transitional deal, to carry over the existing provisions, giving us time to get the third country applications in, and to get the necessary approvals. And they are not necessarily going to be automatic. One hint of "deregulation", or a trade deal with the US, and we will probably have to go through the full procedure.

Even then, a transitional deal is not going to get us round the problem of inadequate border inspection facilities. To cope with UK traffic will require a substantial upgrade in the infrastructure, with the investment of many millions of euros. And this money, initially, must come from the port authorities, who must gamble on the making the investment to keep traffic flowing.

Following that, it is for the national authorities to recruit and train the necessary staff, and to keep the operations functioning. But since no one at the moment has the first idea of what the post-Brexit demand will be, it is unlikely that we will see any time soon a commitment to providing the necessary facilities, to to staffing them when they are in place.

What is currently so bizarre though is the way that the makings of a crisis are being ignored. The Heidi Allen stance is a variation of "it'll be alright on the night" with a completely unrealistic expectation that the outstanding issues will be resolved.

At the very least, what we need from the UK is one of its promised "position papers" to set out what it believes will be the situation regarding food exports (and imports) post-Brexit, and then for the Commission to respond with its views of how it expects trade to be handled.

It is simply not good enough that so many uncertainties should prevail, with potentially devastating effects if we get it wrong. And clearly, if MPs are not up pushing the government to make this happen, we in turn need to be pushing our MPs – even if that sometimes feels as if we're rolling a bolder uphill.

Tory MPs, in particular, need to be made aware that, if the government does get this wrong and we see a collapse in food exports, and empty supermarket shelves following the resultant chaos, the electorate will not be in a forgiving mood.

The price of a botched Brexit could well be end of Tory governments for a generation, and even the break-up of the Conservative Party. And if they will not react to that, we will at least get some small satisfaction in the future by being able to say: "we told you so".

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