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Brexit: tedious persistence

2021-04-01 07:38:30

With tedious persistence, legacy media reports continue to refer to the EU shellfish "ban" on UK exports. The latest such reference is in the Guardian which headlines a piece, "UK shellfish farmers threaten legal action over ban on exports to EU".

There, of course, no ban, which means that no media organ has been able to identify the EU legislation promulgating one – for the very simple reason that it does not exist. That, however, does not prevent idle journalists and the commentariat prattling on about this non-existent entity.

Equally, there is a spate of mis-informed comment about the right of the Commission to ban such produce – not that it has – as long as the supposed ban applies uniformly to all third countries (amongst which is now the UK), thus avoiding any discriminatory action.

To assert that is completely to misunderstand both the WTO's SPS Agreement and the TCA, the latter stating that the Parties "shall not use SPS measures to create unjustified barriers to trade" and that procedures and related SPS measures are "proportionate to the risks identified and not more trade restrictive than necessary to achieve the importing Party's appropriate level of protection". Furthermore, the Agreement goes on to require that:
Each Party shall ensure that any administrative procedure it requires concerning the import conditions on food safety, animal health or plant health is not more burdensome or trade restrictive than necessary to give the importing Party adequate confidence that these conditions are met. Each Party shall ensure that the negative effects on trade of any administrative procedures are kept to a minimum and that the clearance processes remain simple and expeditious while meeting the importing Party’s conditions.
Then we have a requirement that procedures and measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination against the other Party's entire territory or parts of the other Party’s territory where identical or similar SPS conditions exist.

Additionally, there is a requirement that "the importing Party shall not put in place any additional administrative system or procedure that unnecessarily hampers trade".

Specifically, the Agreement also states, in respect of official certification, any model certificates shall be set in line with the principles as laid down in the international standards of the Codex, the IPPC and the OIE, and applicable to imports from all parts of the territory of the exporting Party.

An exhaustive review of the evidence – a process apparently as foreign to the media as it is the commentariat - shows that the blockage in the system is the refusal of the Commission to publish a model export health certificate for Live Bivalve Molluscs (LBM) harvested from Class B waters and intended for depuration before release for human consumption.

The process is actually referred to in Regulation (EC) No 853/2004, laying down specific hygiene rules for food of animal origin. There, in Section VII, food business operators (FBOs) are permits to place LBM those collected from class B areas on the market for human consumption, with the proviso that this should occur "only after treatment in a purification centre or after relaying".

Since there rules apply equally to food business operators in EU member states and in third countries, to apply the rules differently as between the two groups, to the detriment of the UK would undoubtedly constitute "arbitrary or unjustifiable discrimination".

This is especially so as there is no requirement – implies or explicit – that the FBOs who place the LBM on the market should be the same as those who produce them or who carry out the purification process, or even in the same territory.

On that basis, the overwhelming balance of evidence is that the Commission is in the wrong, in its unjustifiable refusal to produce a model health certificate, thereby excluding UK produce from Member State markets by administrative means.

By so doing, it would appear to be in breach of the TCA and, as a Defra spokesperson is currently saying: "The legislation was clear that the export of live bivalve molluscs from class B waters for purification could continue after the transition period", adding that, "The Commission have now amended their import rules, without scientific or technical justification. Effectively, they have changed the law to justify their position in blocking the trade, causing impacts for businesses on both sides".

To my mind, the biggest failing of Defra is in not making it entirely clear the media where the hang up lies. But likewise, the shellfish industry has not exactly covered itself in glory by failing, in good time, to understand what was going on – despite its vital interests being at stake – and then, to this very day, failing to communicate the precise nature of the problem.

Compounding its general incompetence, it is taking an unnecessarily aggressive line against Defra secretary George Eustice – a line I would normally endorse but which, in these special circumstances, is entirely inappropriate. For the very first time in history, Defra is probably in the right.

That, however, has brought us to the current stage in this unholy saga, dogged by inaccurate reporting and almost total misunderstanding of the issues. We thus learn that Eustice "is facing a threat of legal action from shellfish farmers over claims that the government has misled the industry over its post-Brexit arrangements with the EU".

A solicitor representing 20 shellfish firms told the Guardian that the government has shown "negligence and maladministration" and that they are considering a group action claim for compensation. Separately, a major exporter of mussels has sent a legal letter to the secretary of state saying that the firm will sue for damages if the shellfish market with the EU is not opened up by September.

Andrew Oliver, a partner at Andrew Jackson LLP, says he is representing 20 shellfish firms considering possible legal action against Defra. "We are taking a leading counsel's opinion as to the government's actions in regard to the EU trade agreement and the assurances given by the government to make live shellfish exports", he says, asserting: "We feel that there has been negligence and maladministration regarding the government's negotiations on the agreement and its treatment of our clients".

To this, one can only say, the very best of British luck. To mount a claim against the government on this grounds is to enter a very murky area of British law in which the Law Commission recently reminded us that:
The claimant must establish three things: that the public body owed him or her a duty to take care not to cause him or her the loss suffered, that the public body breached that duty by failing to take reasonable care, and that the breach caused the loss. Notwithstanding the apparent straightforwardness of these principles, their application in practice is a matter of great complexity.
The biggest hurdle facing the shellfish producers will be the need to demonstrate that Defra in general and Eustice in particular owed them a "duty of care". In law, this is a highly technical term, the basics of which were set out in case law in the now famous case of House of Lords in Caparo Industries v Dickman.

This laid down a three-stage test for determining the existence of a duty of care. First, the harm suffered by the claimant must have been a foreseeable consequence of the act complained of. Secondly, there must have been sufficient proximity between the parties. Thirdly, it must have been fair, just and reasonable to impose a duty of care in the circumstances of the case.

Given the complexity if the issues, and the fact that the resolution rest with the Commission, and that a preliminary test of "justiciability" must also be satisfied – which rules out the Courts' oversight of "political" decisions – my guess is that the only people who are going to make any money out of this are the lawyers.

Ironically, the shellfish producers would probably have a much better case against the Commission and might be better advised to take proceedings in the ECJ – bearing in mind that, until the TCA is ratified by the European Parliament, Eustice feels that he cannot invoke the dispute procedure.

For now though, with the media able to report the issues about as well as it did with the Ever Given grounding, the fishermen are condemned to wallow in a mire of misinformation and incomprehension, while their chances of remaining in business inexorably dribble away into the lawyers' capacious pockets.

Also published on Turbulent Times.