EU Referendum

Brexit: horsing around


One likes to think that somewhere, even if buried deep in the bowels of a Commission building in Brussels, there is some who understands fully how the EU's trade system for animals and products of animal origins actually works.

I have a horrible feeling though that such a person does not exist. The sort of thing one finds is rigid specialisation and compartmentalisation – where no one person in the system has any knowledge of how the other parts work.

This is very much Kafka territory, illustrated when I once spent four hours on a train from Brussels to Strasbourg in the company of a Commission official. An Englishmen by birth, he had graduated in Madrid with a degree in medieval Spanish literature.

Finding employment opportunities in his calling somewhat limited, he had been attracted by the idea of working for the European Commission and, having to his surprise passed the entry examinations, found himself working for DG Sanco.

What I asked him what he did for a living, he told me: "the beef labelling regulations". Unwittingly, he had perhaps found the one man in Europe who could look him in the eye and say: "that's interesting", and actually mean it. But I then said: "what else do you do?", to which he replied: "the beef labelling regulations". That was all he did.

We see a similar degree of specialisation in the British Civil Service, certainly within the technical levels. In the administrative grades, however – where a first class honours degree in the arts from Oxford is the gateway to success - they specialise in ignorance, which is actively cultivated and honed to perfection.

This is mirrored in our politico-media class, who regard the holders of detailed knowledge with something akin to horror, giving rise to what Lost Leonardo describes as the "arrogance of ignorance". A perfect example of that comes with an article in the Spectator last July, a month after the referendum, when writer Robin Oakley was asked to pronounce on the effect of Brexit on horseracing.

The inconsequential fluff produced was an embarrassment, showing a worrying lack of appreciation of what could happen to what is an important industry worth £3.45 billion to the UK economy, employing (directly and indirectly) 85,000 people and underpinning a £12.6 billion gambling market.

As so often, it was left to a commenter to give some indication of what could await the industry, in this case Dan McCracken who asked whether the Cheltenham Festival would survive without the Irish horses, and whether they would have restrictions on their movement to a non-EU country. Losing the Irish, he wrote, "would decimate that racecourse into a non event".

This, in fact, very much hit the nail on the head. Horse racing has developed into a truly international industry and is reliant on the rapid movement of racehorses throughout the world, by road throughout Europe, and by air to more exotic locations, attracting the interest even of the popular media. The UK industry is particularly dependent on the free movement of animals between the mainland and Ireland.

It will comes as no surprise to our readers, though, to learn that this business is heavily regulated – from the ownership of horses, their movement and, in particular, their (temporary) export and return so that they can take part in foreign races.

Right up front, the crucial element of law is one which requires each horse to be furnished with its own individual passport. I recall Booker and myself making hay - to coin a phrase – with this provision and its bureaucratic absurdities. But, as the system has matured, it is widely supported by owners and industry generally, especially as by 2019, compulsory chipping will be introduced.

Currently, the requirement for horse "passports" is embodied in Commission Regulation (EC) No 504/2008, "implementing Council Directives 90/426/EEC and 90/427/EEC as regards methods for the identification of equidae", which is the latest version of the regulation, providing the foundation for much of the additional EU law.

Although, as a regulation, it takes direct effect, the UK government has chosen to give them an enforcement framework in the Horse Passport Regulations 2009, cross referring to Regulation 504/2008, which remains the executive instrument.

Undoubtedly, the UK Government will want to keep a similar system in place once we leave the EU, not least because it is a mandatory requirement for horses sold for human consumption (for which there is a substantial export trade with EU Member States), and to enable horses easily to be moved around the continent so that they can attend events, races and the like.

If, however, the Government is to rely on the Great Repeal Bill (once it has Royal Assent) to re-enact Regulation 504/2008, expecting – as Mrs May promises us – that: "The same rules and laws will apply on the day after Brexit as they did before", they are going to be a little disappointed.

What they will find is that Article 1 of the Regulation, which sets out its scope, states that it applies to horses (and other equidae) born in the Community or released for free circulation in the Community – i.e., imported in to the EU.

Here again, in a situation that is becoming wearily familiar, the UK can impose regulations on its own citizens, but it has no jurisdiction over the EU. Passports in the UK are issued by Passport Issuing Organisations (PIOs) but they rely for their authority of Council Directive 90/427/EEC on the zootechnical and genealogical conditions governing intra-Community trade in equidae. Repatriating the law will reimpose the system in the UK but passports issued here will no longer be recognised in the European Union. 

Nevertheless, it is not wrong to argue that repatriation of law – which served the Irish, the Indian and even the Polish nations once they regained independence – is a valid tool for the UK in managing Brexit. What this demonstrates, though, is that the process has its limitations.

The difficulty comes, as in this case, when the legislation is setting up a Community system. Here, we see the EU not just legislating for horses but laying down part of its Community Animal Health Policy. When the UK starts to re-establishing its own systems, therefore, it stands to reason that it must make its own laws to do that. It cannot simply download EU law and adopt it unchanged.

However, the crucial additional point in this particular instance is that the UK will need the EU to recognise its passports. No doubt this will be done on a mutual basis where we will also continue to recognise passports issued in the territories of EU Member States.

This, under ordinary circumstances, should not be difficult to achieve, given that we retain regulatory convergence on relevant animal health measures linked to the issue of passports. But it won't happen automatically. It is another item for the weary Article 50 negotiating team to add to its growing list, all to be agreed within a two year period.

Needless to say, Madam May in walkabout mode won't cut it. If the UK walks away without a deal, then the racing industry – and horse owners generally – will find it difficult to move their horses into the EU (or EEA). Horsemeat exports (and the export of live horses for slaughter) will no longer be possible.

But passports, of course, are only one hurdle. We are dealing with the EU here, so continuity is never going to be achieved by sorting out just one law. There are many more hurdles.

The next thing the racing industry is going to have to address is the 2014 Tripartite Agreement on Racehorses mandated by Council Directive 2009/156/EC on animal health conditions governing the movement and importation from third countries of equidae. This is an agreement between France, Ireland and the United Kingdom, originally established in the 1970s, in order to regulate the movement of race horses between the three countries without formal veterinary inspection taking place. It simplifies the process and reduces costs of moving horses between the three countries.

The problem here is that such an agreement can only be made between EU Member States derogating from EU law. On Brexit, this would fall unless a separate agreement was made within the Article 50 framework – yet another thing for the hard-worked negotiators to consider.

The greater problem then is that the UK, by leaving the EU, has assumed the "third country" status. Under EU law, this means an automatic ban on the export of horses. That is the EU's default position. For the UK to resume exports, it must satisfy the conditions set out in Council Directive 90 /426 /EEC on animal health conditions governing the movement and import from third countries of equidae. It must be approved by the Commission and then formally included on the list established by Commission Decision 2004/211/EC.

This is rather similar to the problems with the export of meat. Until the UK is on the list, all exports (including the temporary export of racehorses) will cease. As far as the European Commission is concerned, Brexit day is year zero.

Once again, the UK will be in a position of having to make a specific application to the Commission in order to be assessed for its suitability as an export country. It should not be too hard to get approval as we already comply with the relevant law. But we must be prepared to give assurances that the current level of regulatory convergence will be maintained and that we will not deviate from it. How long the Commission then takes to process our application is up to it. We are in no position to make demands.

Regulatory conformity, incidentally, is not simply a question of applying rules only to those enterprises which export to the EU. It requires the adoption of nation-wide health measures and the maintenance of disease-free conditions in accordance with EU rules, right across the board. This should not be too bitter a pill to swallow, though, as the provisions set are in accordance with the global rules recommended by the OIE.

It is an issue we cannot afford to ignore. Apart from the racing activities, there are fears that the lucrative bloodstock sales might be affected if stock cannot be brought in easily and then re-exported to Community destinations.

As always, though, all these issues are negotiable – and will need to be negotiated, although they would cease to be a problem if we remained in the EEA. But the roof will only fall in if Mrs May decides to walk without a deal. Fortunately, the public are signalling that they do not favour this option, with 51 percent against it. Only 34 percent of respondents said they wanted too leave the EU with no deal.

It seems, therefore, that the public have more sense than the politico-media nexus. Bluntly, though, as the problems multiply, the idea of leaving without a deal is insane.