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Brexit: "no breakthroughs … no breakdowns"

2021-06-10 06:54:26

After yesterday's unsuccessful meeting of the Joint Committee, in which he and Frost sought to resolve the issues over the implementation of the Northern Ireland Protocol, I am beginning to wonder about Maroš Šefcovic.

My immediate cause for concern is a document issued after the meeting, entitled, "Examples of flexibilities identified by the European Commission in an effort to ensure the full implementation of the Protocol on Ireland/Northern Ireland".

This obviously reflects Šefcovic's position and, presumably in an attempt to be helpful, he informs us via his three-page document that the Commission has suggested that "the UK continues to follow, even if only temporarily, the EU’s sanitary and phyto-sanitary (SPS) rules, as it does now".

That is fair enough. The Commission is suggesting neither more nor less than it asks of any other trading partner, mirroring the position taken by other importers. Most of them set the rules with which exporters must comply in order to gain access to their markets.

But that doesn't get the UK round the "sausage ban", much less remove the "official controls" which the British government and the DUP find so offensive. Thus, the Commission overserves: "Most checks on Great Britain – Northern Ireland trade would be removed if there was a so-called 'Swiss-style veterinary agreement' in place".

Helpfully, the Commission also tells us that a "New Zealand-style veterinary agreement based on equivalences would not remove these checks". Nor, indeed would it remove the "sausage ban".

However, to suggest a "Swiss-style veterinary agreement" as an alternative is, to say the very least, being a tad disingenuous. For a start, this isn't a "veterinary agreement" in the same sense that the term applies to New Zealand, which has a stand-alone agreement with the EU.

The 1999 Swiss Agreement (modified and amended many times) is in fact a comprehensive agreement on "Trade in Agricultural Products", the original running to 428 pages, of which one part – Annex 11 – deals with "removing technical barriers to trade", on "animal health and zootechnical measures applicable to trade in live animals and animal products".

In its own official listing, the Commission doesn't even call it a "veterinary agreement", and with good cause. It is much, much more than that, effectively amounting to the complete integration of Swiss rules and systems with those of the EU.

Based on the principle of "equivalence", the criteria for recognition tell their own story, requiring an "assessment and acceptance" of:
- the legislation, standards and procedures, as well as the programmes in place to allow control and to ensure domestic and importing countries' requirements are met;
- the documented structure of the competent authority or authorities, their powers, their chain of command, their modus operandi and the resources available to them; and
- the performance of the competent authority in relation to the control programme and level of assurances afforded.
This amounts to an assessment of the "regulatory ecosystem", to which Barnier has made so many references and, with the other provisions in the Annex, and the Agreement generally, amounts to Switzerland having to accept almost complete integration with the Single Market in this sphere, more so than Efta/EEA countries.

Even if this was practically possible for the UK, politically it would not be tenable. Certainly, it is inconceivable – on past form – that the Johnson administration could adopt this solution and it is unlikely that any other Conservative government could accept this degree of integration and live to tell the tale.

This much, I pointed out recently, responding to a piece by Peter Foster of the Financial Times, asserting that the a Swiss-style agreement was simply not an option.

Unsurprisingly, therefore, the UK has refused this option, but here the Commission is being doubly disingenuous. It has suggested that this could be a "temporary agreement", which could then be reviewed once the UK concluded new trade deals with other third countries. But the very fact that it would need review itself tells you something about the nature of this agreement – and its lack of flexibility.

However, to suggest that something as complex and extensive as this agreement could be crafted as a temporary measure is, to be blunt, absurd. Even though UK legislation and systems are still largely harmonised with the EU, the UK now lies outside the formal remit of the EU and its agencies. Continued integration would require the crafting of new institutions and systems to manage the agreement, as has been the case with Switzerland.

And yet, the FT's Peter Foster is still banging the Swiss drum. No area is thornier than that of veterinary checks on food or live animals, he writes, but it is also one where clear solutions exist "if politics can align with them".

Acknowledging that Frost has rejected such a deal, Foster nevertheless calls in aid Aodhán Connolly, director of the Northern Ireland Retail Consortium. He says that a temporary fully-aligned deal would solve the vast bulk of the immediate problems with the protocol, while providing space to find a long term workable solution.

Connolly warns that unless a deal were done, business was facing a "moment of reckoning" in October when grace periods expired, piling additional burdens on business. "Business is, frankly, fed up with the game-playing and dramas from both sides", he says. "What we need is certainty".

To an extent, one can sympathise, but Connolly is displaying the naivety which has been characteristic of the trade, throughout the Brexit process. And he is joined by another fantasist, Shane Brennan, chief executive of the Cold Chain Federation.

Brennan also wants a veterinary deal, complaining that, without one, British businesses servicing the hospitality, school or prison sectors that could not use the supermarkets scheme would still face burdens that would put many off from doing business with Northern Ireland.

But the reality of the matter is that, as the Commission's own chart shows (illustrated), to get everything it wants, the trade will have to secure a Swiss-style agreement. And that simply isn't going to happen.

On the other hand, without that commitment from the British government, the Commission simply cannot to make any meaningful concessions, and must simply maintain its demands that the protocol is properly implemented.

This has Frost complaining that the EU wants to implement the Northern Ireland protocol in an "extremely purist" way, which seems to be emerging as the "line to take", shared by Arlene Foster and other commentators who accuse the EU of putting the GFA at risk.

The bizarre thing is that, despite his "bonkers" outburst yesterday, George Eustice knew full well what the protocol entailed, writing to the NFU in December last year, warning them about the "prohibitions and restrictions" involved in implementing it.

That leaves the EU arguing that it, and it alone, is protecting the GFA, asserting that the UK's refusal to implement the protocol it is the cause of the current problems. That, as we saw, leaves the issues unresolved, with Frost David Frost declaring that there had been "no breakthroughs", but no "breakdowns".

Where we go from here is anybody's guess.

Also published on Turbulent Times.