EU Referendum

Brexit: kippergate revisited


In response to the Oaf's Commons statement on Wednesday, Jeremy Corbyn came up with what some might think was a rather bizarre intervention. "The office of Prime Minister requires integrity and honesty", he said, "so will the prime minister correct his claim that kipper exports from the Isle of Man to the UK are subject to EU regulations?"

This was followed up by SNP MP Stephen Gethins who accused Johnson of not having a clue about what he was doing. Out of left field, he then asked him how he responded to a Fife packaging company that had written to him to explain that the kipper packaging rules were made in Westminster and had nothing to do with the EU.

It will come as no surprise that Johnson didn't answer the question – answering questions is not in the Oaf's skill set. But, combined with the observations from the "Fife packaging company", the two interventions, one from the leader of the opposition and the other from a backbench MP, did raise some interesting questions.

We can follow the observations of the Fife company via the local newspaper which ran a story a few days after Johnson's original "kippergate" statement under the heading: "Fife firm slams Boris Johnson for using their product to bash food standards laws".

This is the Glenrothes-based business SorbaFreeze which says it recognised its "unique" ice packaging and objected to the (then) prime ministerial candidate using one of their products "to bash food standards legislation".

David Rutherford, sales administrator for the company said they were able to identify their "distinct, unique" packaging as pictures of Johnson's "bizarre rant" went viral. He said: "Watching him wave our ice packet around was pretty surreal". And thus motivated, the company wrote to Johnson in the following terms:
At the hustings, you held a smoked kipper along with a SorbaFreeze ice pack, stating "this kipper has been presented to me just now by an editor of a national newspaper, who received it from a kipper smoker in the Isle of Man, who is utterly furious, because after decades of sending kippers like this through the post, he has had his costs massively increased by Brussels bureaucrats who have insisted that each kipper must be accompanied by this, a plastic ice pillow. Pointless, expensive, environmentally damaging, 'elf and safety, ladies and gentlemen'".

It was Whitehall that made the rules in question, not the EU and whether you intend to Brexit with or without a deal, any future trading agreement with the EU would mean that we have to follow its regulations on all food imports.
It would not be an exaggeration to say that this intervention was not exactly helpful. Rather than clarify the issue it actually adds to the confusion because, as I subsequently wrote, the regulations did not come from Westminster (or Whitehall for that matter) but indeed were of EU origin.

But it does leave me wondering whether there is anyone at all in the system who actually understands how it works when we have the European Commission, the leader of the opposition and a representative of a packaging company – to say nothing of a backbench MP – all getting it wrong. And nor can it be said that the Oaf was at all close to reality.

As I left it a few days ago, I'd pinned down the actual requirement to Regulation (EC) 852/2004 on the general hygiene of food. The way the system works is that this law imposes a general duty on food operators to maintain the safety of their foods, and then to decide on the correct temperatures at which to keep those foods, providing the means by which this can be achieved.

However, I can't now say that this is a wholly satisfactory explanation because, on reflection, there is a minor detail missing – the food was produced, packaged and dispatched from the Isle of Man, which is not within the European Union and to which EU legislation does not automatically apply.

Exploring this further reveals a fascinating, if little-known corner of the EU/EEC package, which brings the Isle of Man into the system. Basically, when the UK joined the EEC in 1972 the IoM decided that it would shadow Community law, to which effect it passed the European Communities (Isle of Man) Act 1973. This allowed the Council of Ministers, subject to the approval of the Tynwald, the Manx Parliament (pictured), to adopt "any EU instrument" into Manx law.

Since then a huge raft of EEC and then EU law has been absorbed into the Manx statute book, turning Community law into Manx law. This is different from the UK procedure, where there is no "direct effect". EU regulations become Manx law.

And there comes the interesting twist. The Manx government has adopted the whole EU food safety package, consolidated in one instrument under the title The Food Hygiene Regulations 2007. Amongst others, this implements Regulation (EC) 852/2004, which sets the requirements for the kipper temperature controls. But, in strict terms, we're dealing with Manx law, even though it actually implements EU law.

As to why this should (apparently) now require the infamous "ice pillow" - when previously, it would seem there was no such requirement – this is easy to explain. In my earlier pieces I referred to the ESSA code of practice and it turns out that this was endorsed by the European Commission's Standing Committee on Plants, Animals, Food and Feed (PAFF) on 3 July 2018, in Brussels. This gave it formal status, setting a "deemed to satisfy" standard, conformity with which could be taken as evidence of compliance with the law.

Setting a transport temperature of 4ºC from July last year, this had the effect of encouraging food operators to include an ice pack in their mail order parcels – the cost of which, incidentally, is about 13p.

Intriguingly, though, it doesn't end there. When the UK leaves the EU, the current arrangements for the IOM end, and the European Communities (Isle of Man) Act is repealed. But, replacing it is the European Union and Trade Act 2019 which, through a series of statutory instruments, permits EU law currently applying to the IoM to be re-enacted.

Sure enough, in the European Union and Trade Act 2019 (Deficiencies) (DEFA) (No. 6) Regulations 2019, which take effect on "Exit Day" (when the UK leaves the EU), we find re-enacted our old friend Regulation (EC) 852/2004, plus all the other EU food safety laws. Thus, even if the UK dumped the entire corpus of EU food safety law after Brexit, the Isle of Man would continue applying it. Brexit would bring no relief to our Manx kipper smoker.

So, there we have it – Manx law based on EU law, augmented by a European trade association code of practice, approved by a European Commission standing committee made up from representatives of EU Member States. One should add that the trade only exists in the first place because the EU has approved the Manx hygiene regime and thus allowed direct personal imports in EU Member States from the IoM without the goods having to pass through BIPs.

That it's taken me three goes to work this out says something for the complexity of the system, especially when everyone else who has gone public on this seems to have got it wrong – including Johnson who actually has no idea of what he's talking about. Yet, it is Johnson who wants to change the system.

One is minded of the owner of a treasured classic car who takes his car for modifications to a local garage, to be shown the technician who will do the work - an idiot sitting in the corner with a club hammer, giggling inanely while smashing engine parts.

That's the man who wants to change the system.