The European Union cannot, and will not, stop imports of food into Northern Ireland.
This article originally appeared on Prospect Magazine.
All zones of public discourse have their extremes and irrationalities, but none more than Brexit. In just a week, the UK government has introduced a new draft law which initially promised to tidy up “loose ends” of the Brexit withdrawal treaty, then morphed into “specific and limited” breaking of international law and ended as an act of self-defence to stop “a foreign power from breaking up our country.” The misleading idea has taken hold that the UK has to act unilaterally to prevent the EU causing a “blockade” of food from Great Britain to Northern Ireland.
Putting aside the fact that the government’s proposed legislation—the Internal Market Bill—does nothing to address the issue of goods moving from Great Britain to Northern Ireland, and focuses instead on state aid and goods travelling from NI to GB, Boris Johnson on Monday went to great lengths to explain the stakes. The problem, the prime minister said, is that the EU is refusing to list Britain as one of the countries whose food products can be sold anywhere in the EU. This could lead to “an instant and automatic prohibition” on the transfer of products of animal origin from Great Britain to Northern Ireland. Worse, it is an example of the EU acting in “bad faith.”
The issue here is a so-called “third-country listing” for animal products that Britain will need from 1st January 2021, when the transition period ends. It is a technical process—usually far from the public eye—which all non-EU countries must go through if they want to export animal products to the bloc of 27 countries. These countries are then “listed” by the European Commission as having good enough domestic protections for animal welfare. Most countries around the world have this status, typically granted for specific food products, as well as to specific producers.
Being “listed” doesn’t prevent veterinary checks at the border—all products of animal origin entering the EU from outside the single market have to be checked at “border control posts”—but it is a pre-condition to this process.
This gives us a glimpse into a universe outside the single market and without a comprehensive trade deal, in which there are no automatic rights to anything. The “listing” serves to protect the bloc from imports which could pose health risks. The EU grants listed status at its own discretion, after its assessment, and can withdraw it at any time. In 2018, for example, when European officials detected problems with the way certain Brazilian meat plants operate, they “delisted” about 20 food plants there, halting over 30 per cent of Brazilian meat imports into the single market.
Downing Street argues that, without Britain being on the list, this could theoretically lead to food imports being prohibited not only from Britain to the EU, but also from Great Britain to Northern Ireland, since under the compromise worked out in the Withdrawal Agreement, Northern Ireland will still be subject to EU animal welfare standards.
It is true that Brussels has not yet granted the UK this listing. It is also true that the EU is delaying the decision partially in order to keep leverage over the UK. But the problem for the EU is that it doesn’t know how far Britain wants to change its sanitary rules from next year. This, as UK chief negotiator David Frost has responded, shouldn’t be a problem, since the EU knows all too well that the UK will be in line with the bloc’s sanitary regime when the transition period ends, having been bound by EU regulations up to this point. Any subsequent changes would be notified to Brussels through the standard WTO procedure, under the “SPS” agreement, which asks countries to inform their trading partners of new regulations affecting future trade.
The reality is always more nuanced than the loud rhetoric. True, the UK ticks all the boxes now and, strictly speaking, is under no obligation to tell the EU how its legislation will evolve from next year. But it is also true that Britain has, for over a year now, said openly that it intends to alter its SPS rules after the transition period. And so the ask by EU officials to provide clarity on its future sanitary regime doesn’t exactly come out of the blue.
The actual risk of Britain ultimately being refused the listing is very low. The EU is just waiting for details from the UK, particularly on the domestic legislation that implements the new sanitary regime. After Brussels sees those details, the EU’s “PAFF” committee—on Plants, Animals, Food and Feed—will undertake its assessment in a matter of days, in much the same way as it did last year when Theresa May’s government faced the prospect of a no-deal Brexit.
Crucially, any rejection of the listing by the EU would not lead to actual food blockades. First, stopping food transfer to Northern Ireland would likely put the EU itself in breach of the withdrawal treaty, since its actions wouldn’t conform to Article 6 of the Northern Ireland protocol—a clause which asks the EU to “use best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom.” Second, if the risks were to materialise, the protocol contains a broad “safeguard” provision which would allow the government to unilaterally take immediate steps to ensure the flow of goods.
This, far from a defence of the UK’s integrity, is nothing more than a ploy by the government to justify its actions under the pretence of un-doing the bad by the EU. It might prove a tactically astute move by Johnson to garner support for his legislation.
But what the latest episode of the Brexit drama really shows us is how essential trust is in negotiations and how little of it there is right now. In a more rational world, the UK would be less evasive about its animal welfare standards; the EU would grant the listing more rapidly; and we would be spared the saga unfolding before our eyes.
Instead, we are in a situation where trust has hit the rock bottom: Brussels doesn’t trust Britain to honour its word, especially without binding assurances. For its part, London—in a state of permanent paranoia about any upfront commitments that could undermine its newfound sovereignty—doesn’t trust the EU enough to be more transparent about its future intentions.
Forget “food blockades”—the issue will be resolved in the months ahead. But the past days should serve as a warning to both sides that petulant defiance is no way to conduct international relations, let alone to build a new long-term relationship between two strategic partners.