Richard North, 14/09/2020  

Responding to the claims of Johnson et al, Michel Barnier has responded on Twitter to say that the Protocol on Ireland/Northern Ireland "is not a threat to the integrity of the UK".

We agreed this delicate compromise with Boris Johnson and his government, he writes, "in order to protect peace & stability on island of Ireland. We could not have been clearer about the consequences of Brexit".

Responding to Johnson's specific charge that the EU "might actually stop the transport of food products from GB to NI", Barnier retorts that "sticking to facts is also essential". A case in point, he says, the EU is not refusing to list Great Britain as a third country for food imports (SPS). To be listed, we need to know in full what a country's rules are, including for imports, he says. The same objective process applies to all listed countries.

Nevertheless, it would appear that the EU has not yet listed Great Britain, which has David Frost answering in his capacity as the PM's negotiator in the current and last autumn's talks.

On the Protocol, he says, we indeed negotiated a careful balance in order to preserve peace and the Belfast (Good Friday) Agreement. It is precisely to ensure this balance can be preserved in all circumstances that the Govt needs powers in reserve to avoid it being disrupted.

As to third country listings, he goes on to say that the EU knows perfectly well all the details of our food standards rules because we are operating EU rules. The situation on 1 January 2021 is accordingly perfectly clear. We have discussed this frequently with the EU including last week.

Any changes in future, he says, would be notified to the WTO and EU in the usual way with plenty of lead time. The EU lists dozens of countries globally on precisely this basis, without any sort of commitment about the future.

Yet it has been made clear to us in the current talks, Frost then complains, that there is no guarantee of listing us. He adds: "I am afraid it has also been said to us explicitly in these talks that if we are not listed we will not be able to move food to Northern Ireland".

The EU's position, Frost asserts, is that listing is needed for Great Britain only, not Northern Ireland. So if GB were not listed, it would be automatically illegal for NI to import food products from GB.

Thus, he concludes, "I hope the EU will yet think better of this. It obviously makes it no easier to negotiate a good free trade agreement and the solid future relationship which we all want".

And yet, as I remarked on Saturday, we raised this listing problem four years ago and we should not now be in a position, with only months to go, where it is still unresolved.

Nevertheless, it does seem to me that Frost is being rather presumptuous in expecting third country listing merely on the basis of track record (i.e., that we currently meet the requirements).

The EU's listing process is by no means automatic. It is a lengthy technical and administrative process, the top tier of a three-tier system comprising: (1) listing; (2) approval of establishments; (3) process controls and inspection at points of origin and subsequent processing. It is through this system that the EU ensures that exporting countries meet the standards for foods of animal origin set out in EU law.

The listing itself is conditional, and the listing process is intended to ascertain whether the "competent authority" in the applicant country has the systems in place which will enable conformity with EU food law. Furthermore, it implies that the country will make its best endeavours to ensure that conformity with the conditions of listing will be maintained.

The point at issue is that (2) & (3) are carried out by the competent authority of the exporting state. In listing a state, therefore, the EU has to assure itself that the competent authority has the ability, the resources and the commitment to enforce EU standards. Even if the first two apply, if the state lacks the commitment, then the EU would not be happy with listing it.

In this context, though, it seems the specific reservation is with import controls and the standards applied to imported foodstuffs. Clearly, if imported goods do not meet EU standards (for instance in terms of permitted pesticides and maximum residue levels), and they are used as ingredients in UK processing – or even just repackaged and re-exported – then UK export standards might be compromised.

Nothing of this is academic. Obviously, food entering EU Member States from third countries is inspected in Border Control Points (BCPs), but any modern food control system does not rely simply on single point inspections. It requires what the EU terms a holistic "farm to fork" approach, with controls at every stage of the process.

And although the system does occasionally fail (as with the horsemeat scandal), we are not really in a position to complain. The original system was devised by the UK, primarily to regulate meat imports from countries such as Argentina, enhanced in the wake of the Aberdeen Typhoid Outbreak and copied by the EU.

Where UK politicians are glibly talking about "deregulation", about adopting their own standards, and about making trade deals with the likes of the US, which do not conform with EU standards, then we really cannot be surprised if the EU is cautious about listing the UK. It is perfectly in order for the EU to seek bankable assurances that standards will be met, which are often secured by way of Free Trade Agreements.

Barnier makes the point that, when it comes to listing, "the same objective process applies to all listed countries", and that must be the case. WTO rules will not allow otherwise. But this applies both ways. If the EU can't be more severe in assessing the UK than it is with other countries, it cannot be more relaxed either. Otherwise, those other countries will demand the same treatment.

But this now gets interesting with Northern Ireland. Frost confirms that the listing applies to Great Britain but not Northern Ireland. Under the Protocol, as we know, the Province remains in the Single Market, applying EU law. Thus, it can only import foods of animal origin from EU Member States and listed third countries.

It follows, therefore, that if Great Britain has not been listed by 1 January 2021, no foods of animal origin can be exported to Northern Ireland. On the other hand, Northern Ireland can still import from the Republic of Ireland, from any other EU Member State, and from any other listed third country (such as Canada).

In anticipation of such a possibility, there is a huge amount of outrage, with Ambrose Evans-Pritchard talking of the UK's need "to defend itself against predatory diplomacy".

But the outrage is vastly overcooked. Listing is a technical process and either the UK meets the requirements or it doesn't. This isn't even for Barnier to decide. It is decided by the EU's Health and Food Audits and Analysis Office, located in Grange, Ireland, and the decision to list is made by the Commission in accordance with the criteria set out in Regulation (EC) No 854/2004.

Specifically (with certain exceptions), third countries can appear on the lists only if their competent authorities "provide appropriate guarantees as regards compliance or equivalence with Community feed and food law and animal health rules". If the UK can't provide those guarantees, no amount of special pleading will get it listed.

Furthermore, this listing process has to be carried out irrespective of any free trade agreements. The process is entirely independent of such deals, and applies to all third countries.

One wonders, though, whether Barnier has picked up the implications of Clause 2 of the UK Internal Market Bill, on mutual recognition. This includes Northern Ireland (see Clause 53), which would seem to indicate that the listing requirements of EU law have been by-passed.

If this is the case, then the current argument is moot. The UK government will be ignoring EU law and allowing produce to move from Great Britain to Northern Ireland, irrespective of whether third country listing has been secured.

It will be interesting to see whether this is raised in the Commons debate today or whether, like so many things, it goes by default because MPs haven't the wit to do their jobs.

Also published on Turbulent Times.

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