Richard North, 17/08/2017  
 


One of the great lies perpetrated by remainers and "Ultras" alike is the claim that pursuing the "Norway" (Efta/EEA) option would require us (the UK) to continue obeying EU laws, with "no say" in their creation. That never was true, even within the constraints of the EEA institutional arrangements, but it doesn't stop those opposed to a "soft" Brexit trotting it out at every opportunity.

With no doubt unintended irony, however, it is exactly that scenario which the Government is proposing in its latest "position paper", this one on the Irish border, in respect of cross-border movement of animals and foodstuffs.

So desperate is the Government to avoid a hard border in relation to checks on particular types of goods, those it terms "Sanitary and Phytosanitary (SPS) measures for agri-food" that it is suggesting that the EU allows us to adopt the "Swiss option", which "could ensure that there would be no requirement for any SPS or related checks for agri-food products at the border between Northern Ireland and Ireland".

You have to look quite carefully for the Swiss reference as it is confined to a footnote – the one exception outside the EEA where routine border checks on these products have been all but eliminated.

But the price paid for this "freedom" is one which the "Ultras" are seriously not going to like – and nor it is going to be without complications. Firstly, as with Switzerland and the EU, the UK will have to be defined as a "common veterinary area" for the purposes of disease control.

This though rests on a comprehensive EU-Swiss treaty known as the Agriculture Agreement which includes 11 Appendices covering 37 pages on animal health matters, bringing Swiss law into line with the lengthy list of EU legislation.

This agreement also creates a Joint Veterinary Committee between the EU and Switzerland which has the authority to frame joint "acts" binding the parties, one purpose of which, as illustrated here is to keep Swiss law updated and in line with EU provisions.

This is not simply a question of "equivalence", as the UK Government would like it to be, but more-or-less complete harmonisation of law, systems and procedures, with the EU setting the agenda.

Sanitary and Phytosanitary agreements between the EU and third countries are by no means unusual, with the Commission website thirteen such, of which the Swiss agreement is clearly the most comprehensive. Mostly, such agreements are either free-standing treaties (as with the Swiss) or built into broader free trade agreements. Special "simplified procedures" apply to Efta/EEA states.

To ensure effective collaboration between Switzerland and the EU in the event of the detection of a listed animal disease, Switzerland is fully linked via a computerized network to the veterinary authorities of the European Commission and individual Member States of the EU through the Trade Network and Expert System (TRACES) and the Animal Disease Notification System (ADNS). Furthermore, Switzerland participates in different working groups and meetings of the Standing Committee on the Food Chain and Animal Health (SCFCAH).

All this could be replicated to form an agreement between the UK and the EU, with the added proviso (also built into the Swiss agreement), that any agri-food products entering into the UK from other third countries has to be subject to the same import regime as applied by EU member states to similar products entering their territories.

This would include the provision of Border Inspection Posts and the diversion of imports to them before they were submitted to customs clearance. Any goods coming into to Ireland with a final destination in the UK or an EU Member State must be inspected by the Irish authorities at a BIP (or other approved location). The combined effect of this regime would be to rule out independent trade deals in the agri-food sector with other third countries, where more relaxed or different standards were applied.

As far as agri-food products go, this would certainly give us the "invisible border" that the UK Government so much wants. What is not going to happen though, is the EU exempting traders and farmers from checks – as the Guardian avers.

The UK will have to maintain the full spectrum of internal checks, and paperwork, applying EU law to its fullest extent. But the effect would be that, in respect of this major sector, the UK would gain no relief from Brexit. To all intents and purposes, it will not have left the EU.

As to whether this would political tenable in the UK remains to be seen but it would quite obviously contradict any claim to us having regained control over our laws.

One possible advantage though is that, in the Swiss agreement, there is no judicial element in relation to dispute settlement. The Joint Committee acts as an informal arbitration body. Failing that, there is always the WTO dispute settlement procedure. Thus, there is no problem with ECJ jurisdiction.

Whether the EU would allow the same informal approach to apply in an agreement with the UK also remains to be seen. If it wanted more, then this could become a sticking point. That aside, a comprehensive sanitary and phytosanitary agreement (whether or not part of a more general agricultural agreement) would be a complex and time-consuming thing to negotiate.

Now that the UK has tentatively put it on the table, by way of its position paper, it is open for the parties (the EU and the UK) to place it firmly on the agenda. However, Barnier has already made it clear that he is keeping to the sequencing outlined in his negotiation mandate, so it is unlikely that we could see talks on this complex subject start until the end of the year, if not later.

Then to conclude an agreement before Brexit day would be possible, given that our laws and systems are already fully integrated with the EU- provided there are no unexpected glitches. The key though is whether the parties can find a slot in what will be an increasingly crowded agenda. The sheer volume of issues to be negotiated is going to make that difficult.

And that is just one small part of the whole, which will have to go to making the Irish border "invisible". All the other sectors, from aviation to chemicals, pharmaceuticals and engineering, each with their own specific regulatory requirements, will require their own agreements, on top of broad-ranging mutual recognition agreements on conformity assessment.

At least, though, for these position papers, the UK government is beginning to think in concrete terms about what is necessary to secure a working settlement with the EU. But, as it does so, the complications multiply rather than fade away while, as Mr Barnier keeps reminding us, the clock keeps on ticking.

Many of the problems, of course, would melt away should the UK – even at this late hour – adopt the Efta/EEA option – which offers a far better deal than the UK is seeking through its position paper. This is a bizarre example of negotiators turning down an option only to go for something less advantageous.

And even then there are countless other issues which need to be addressed, with the Irish Times recording that IT experts are dismissing the idea of a frictionless border altogether.

When push comes to shove, the border will form the EU's external border and the EU is not going to allow Northern Ireland to become a "back door" into the single market. With agri-foods as the model, that could see the Irish tail wagging the British dog, with the UK having to erect barriers at the borders between itself and third countries in order to preserve free movement across the Irish border.

And on that basis, the Irish solution that we have seen outlined yesterday could end up being no solution at all.






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