Richard North, 23/04/2021  

By my reckoning, the oddest thing about this report is that a UK court has intervened in the matter.

This is the case of the four ponies held at Belfast port for since 21 March after arriving in Belfast on a ferry from Liverpool. Defects were found in the export paperwork signed off by "experienced" veterinary surgeon Phillipa Hughes, who – amongst other things – seems to have filled in one section of the form in black ink instead of red.

Clearly the vet had yet to complete her coloured crayon course, although her more substantive error was to omit details of the ponies' place of origin, required for welfare and tracing purposes. Under EU law adopted as part of the Northern Ireland Protocol, this should have necessitated the ponies being sent back to Britain for a further 30 days' quarantine.

And that is the oddity. If there was any dispute about the application of EU law, the Withdrawal Agreement (of which the Protocol is an integral part) allows only for the dispute procedure to be invoked, handled by the Joint Committee set up under the Agreement.

In implementing this international agreement, there is no direct role for the ECJ but neither is there any explicit provision for the intervention of UK courts. On the face of it, they would appear to have no jurisdiction over officials working within the strict terms of the Protocol.

Yet, on an application from Ashleigh Massey from County Down, who had bought the ponies as a gift for her daughter, District Judge George Conner concluded there was "no virtue in sending the animals back to Scotland or any other place on the mainland just to teach someone a lesson in form-filling".

With Massey unable to afford the cost of sending the ponies back (despite being able to afford an expensive court case), the judge also questioned what their ultimate fate would be. "I'm left wondering would the ultimate position be that they would have to be slaughtered", he added. "In this case I allow the appeal and order the release of the animals".

According to media reports, he then urged Brussels to review the case and the rule that the animals should have been returned to Britain for a further quarantine, rather than remain in Northern Ireland.

"Requiring the movement of the animals to some port on the mainland is inappropriate and cannot be said to be in the interest of the animals", he said. But, in what perhaps amounted to a tacit acknowledgement that he was acting outside his jurisdiction, he added: "If I'm wrong in this it should be looked at by Europe, and some scope allowed for the application of common sense".

This, apparently, was the first case of its kind since the UK left the EU and, during which the chromographically challenged Phillipa Hughes gave evidence remotely. She accepted she had made mistakes on the forms and told the court she was prepared to travel to amend them, but insisted the ponies were completely healthy and disease-free.

Massey's barrister, Sean Mullan, accused the Northern Ireland’s Department of Agriculture, Environmental and Rural Affairs of acting "irrationally and disproportionately".

"These are not animals coming in from the far east or Russia" he argued. "This is not some rogue vet trying to flood the market with rogue animals. She is an experienced professional, and she has expressed her distress about them being in this predicament".

Outside the court, Massey's solicitor, Patrick Higgins, called on Stormont, Westminster and Brussels to address issues he claimed the Northern Ireland public were now encountering on a daily basis.

"No matter what way people voted in the Brexit referendum, no one in Northern Ireland voted for this new additional level of bureaucracy being placed upon animal owners, hauliers and vets as a result of the Northern Ireland protocol", Higgins said. "This additional bureaucracy is affecting the economy of Northern Ireland".

So far, it is too early to expect any response from Brussels, and it may be that we don't see any public reaction. On the face of it though, this judgement represents a serious challenge to the operation of the Protocol, the court's intervention effectively bringing it within the jurisdiction of a UK court – and a lower court at that, equivalent to a magistrate.

Politically, the Guardian assumes that the case will be seized upon by critics of the new Brexit arrangements, including the Democratic Unionist party and loyalist communities involved in recent violence, as an argument for getting rid of the Protocol they see as absurd.

But the paper also brings in Shanker "Snake Oil" Singham, styled as a government adviser and trade "expert". Once again illustrating its lack of grip of the issues, the House of Commons Northern Ireland affairs select committee called upon this charlatan to give evidence on the way forward for the Protocol.

Back in September 2018, he was foolishly advocating that the UK "should put forward an open and constructive offer of mutual recognition with the EU".

"Autonomy", this idiot said, "would be followed by recognition by the UK of EU regulation, standards, and conformity assessment, meaning institutional competition for the UK, commercial competition from EU imports, and avoidance of unnecessary trade barriers on imports".

At no time ever, though, was mutual recognition an option and now Singham seems to have changed his tune. He now argues that "one way to dramatically reduce the checks was for the UK to ask the EU to agree a veterinary arrangement similar to that operating between Australia and New Zealand".

The phrasing is a little vague here: one could read it as copying the arrangement between Australia and New Zealand, except that there isn't one. There is cooperation between the two countries on food standards, which takes in a Food Standards Treaty, dating from 1995.

This treaty, however, involves Australia and New Zealand adopting a joint system for determining food standards and then adopting common food standards, in a system not that dissimilar to that operated by the EU.

One presumes that Singham doesn't have this in mind, in which case we must take the alternative meaning. That the UK should be looking for an agreement with the EU similar to that which it supposedly operates with Australia and New Zealand.

We saw this canard raised only a few days ago when the issue of a veterinary deal was raised by the Guardian and RTE.

There is a lot of thrashing around on this subject, as I have observed, but it does not appear that Singham has anything to offer. He at least understands that a veterinary deal would not get rid of checks altogether but, he says, this would "lower the intensity" of the checks.

The scope for this, though, is very limited and it would certainly not automatically reduce the burden of paperwork. Where there is scope for reducing the regulatory burden, as I wrote earlier, is if both parties develop electronic certification systems.

This is in place with New Zealand, but the agreement requires a secure link enabling data transfer between the respective systems. And, as electronic certification provides equivalent guarantees to paper based certification, the Parties have to agree a legally watertight legal mechanism to enable this to happen.

One of these days, I wrote, I suppose, the pundits will actually read the New Zealand documentation, and perhaps talk to some established third country exporters to see what the system entails, instead of building castles in the air, based on unrealisable hopes. That might apply to House of Commons Northern Ireland affairs select committee, instead of wasting its time talking to Singham.

From what we know of the four ponies of the apocalypse case, an electronic system would have resolved Phillipa Hughes' problems, as a properly designed system would not allow the submission of a form with incomplete fields, and no crayons would be required.

Also published on Turbulent Times.

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