Richard North, 16/09/2020  

I am still puzzled by the prime minister's original claim that the UK Internal Market Bill was intended to "break the blockade", so to speak, in the event that the EU does not grant third country listing to the UK.

This, as we know, is the first of a three-stage procedure required before the UK can export live animals or products of animal origin from Great Britain to EU Member States and – through the exigencies of the Irish Protocol - to Northern Ireland.

If there was any doubt that this so-called "blockade" was real, we at least have a semi-literate piece in the Telegraph to confirm what we know. Headed, "Brussels warns lobby groups that UK food exports to EU and Northern Ireland could become illegal", it tells us that "British cheese, lamb and beef will be outlawed unless UK gives details of its future food rules by November".

Where the article departs from reality is in asserting that "Brussels has warned farmers, businesses and animal welfare campaigners that it may be forced to ban all British exports of live animals and animal products such as cheese, beef, eggs, chicken and lamb from 1 January".

We then learn that, "European Commission officials told a meeting of trade associations and other stakeholders in Brussels on Friday that the ban was inevitable unless the UK gives details of its future animal health and food safety regime by the end of October".

I sincerely hope that no European Commission officials expressed themselves in such lurid and inaccurate terms – but then it is difficult getting the staff these days. The point – which should have been recognised by journalist James Crisp who wrote the piece – is that we're not dealing with a ban, as such.

Third country listing is an administrative procedure, requiring an applicant country to conform with detailed requirements set out in EU law. In much the same manner as an applicant for a driving license has to comply with certain requirements – such as passing a driving test – the applicant country must "pass the tests" or it doesn't get listed.

But in the same way that you would not suggest that someone not qualifying for a driving license was "banned" from driving – which is an altogether different process – there is no question of the UK being banned from exporting. Basically, by choosing not to comply with the requirements, we will have excluded ourselves from the EU market, and from exporting to Northern Ireland. Unfortunately, The Sun is also using the same "ban" terminology.

In this instance, the issue seems to revolve around our import controls for animals and animal products. The UK government has opted to relax controls for the first six months of the year and then, post I July 2021, has not specified in detail what the control regime will be.

Entirely reasonably, the EU is taking the view that unless the UK's regimes comply with its statutory requirements – by the end of October – it will not list the UK. Indeed, it cannot. Under WTO anti-discrimination rules, it cannot treat the UK differently from any other third country.

Then, if it did not require full compliance, it would be in breach of its own rules. As such, the Commission would be open to ECJ proceedings by any other third country trader (or government) or even traders in EU Member States – with or without the support of their governments.

We do, incidentally, need to move past the schoolyard defence, complaining about the Commission upholding its own rules because it also breaks them elsewhere. The tu quoque defence was ruled out during the Nuremberg trials and applies to neither international nor domestic law.

Should the UK decline to conform with the listing requirements and is thus unable to export from Great Britain to Northern Ireland, it could of course, invoke Article 16 of the Protocol (safeguards), arguing that its application "leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade".

In that case, supplies could be shipped as normal, although the EU could then take "proportionate rebalancing measures as are strictly necessary to remedy the imbalance". This might include sanitary checks at the Irish Republic border, which would rather defeat the object of the Protocol.

Johnson, however, initially claimed that his way past the "blockade" was the UK Internal Market Bill which, if it comes into force, includes a "mutual recognition" provision which he hinted could be used to circumvent that lack of EU listing.

Although Johnson has apparently abandoned that idea, he has not ruled out taking action, expressed during Monday's debate in terms of: "we are not taking powers in this Bill to neutralise that threat, but we obviously reserve the right to do so if these threats persist…".

Reading this literally, it would suggest that Johnson still has ambitions of using the Bill to break the "blockade". His response could thus be read as "we reserve the right [to take powers in this Bill] if [the] threats persist". Looking into this, there is a mechanism available to him, which he chose not to disclose when challenged by Ed Miliband. As it stands, in the Bill Clause 11(1) rules out the application of "market access principles" to Northern Ireland, but this exclusion can be modified by 11(2).

This sub-Clause allows the application of the mutual recognition principle for goods in relation to "all qualifying Northern Ireland goods" as if they were produced in, or imported into, Northern Ireland. In other words, if animals or animal products were defined as "qualifying Northern Ireland goods", they could (in theory) be imported into Northern Ireland, in breach of the Protocol.

Now, the point at issue here is that "qualifying Northern Ireland goods" have not yet been defined. That power lies with a "Minister of the Crown" by way of Regulations, written into Section 8C of the European Union (Withdrawal) Act 2018, as amended by the 2020 Act (Section 21).

Interestingly, Bill Cash would then have it that Section 38 of the 2020 Act would apply, asserting Parliamentary sovereignty over section 7A of the 2018 Act (other directly applicable or directly effective aspects of the withdrawal agreement).

Whether this is what Johnson has in mind can only be a matter of speculation. But it does appear that there will be a mechanism for him to use if the UK Internal Market Bill becomes law, without him having to go back to parliament. To what extent the EU is aware of this also has to be a matter of speculation, but it can hardly be a surprise that it has reacted sharply to the publication of the Bill.

However, the Express is asserting that the government is planning to publish a draft food safety bill next month, which will transpose Withdrawal Agreement commitments on animal and plant health into UK law. In that is the case, and the conditions of the Official Control Regulations (Regulation (EC) No 854/2004 and Regulation (EC) No 882/2004) can be met, then another crisis, such that it is, will be over.

But if it really is that easy, one has to wonder why Johnson has raised the temperature in the way that he has, unless – as some believe - he thinks that this is the way to break the current negotiation logjam. At the end of the month, when the draft bill is unveiled, will it be smiles all round, followed by the conclusion of a deal?

Also published on Turbulent Times.

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