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.