Brexit: in the grip of EU law

31/01/2018

Do we actually care that there has been a leaked report which tells us that all three possible options for Brexit involve a significant loss in GDP, with the ranking (in terms of loss) ranging from WTO option as the worst, and the Efta/EEA option the best?

Some are dismissing it as just another example of "project fear", recalling the notorious pre-referendum Treasury report, but the point surely is that anyone with half a brain would have understood that leaving the EU was bound to involve a short-term economic loss.

What I suppose it does is remind us of the paucity of the debate – on the basis that the leaked report should come as a shock to anyone - but then we hardly needed any reminding. For a long time, we have been fully aware that the media and politicians are stuck in the "Brexit 101" groove and are having trouble extricating themselves from it.

Then we have to issue illiteracy of the Evening Standard , extolling the virtues of the European Free Trade Association, suggesting that we can "stay in" it – even though we're not currently members, as if this had any relevance to our post Brexit situation.

If the paper means the EEA Agreement (and it thus advocating membership of Efta as a means of remaining part of the Agreement, then it should say so. But then, at best, we'd be talking about an elementary mistake that newspaper has no business making. At worst, we're dealing with the pig ignorance that that so blights the entire Brexit debate.

Were there any value in so doing, I might be tempted to go back up to Scotland and campaign for the more sensible application of food safety controls, freed from the malign grip of Food Safety Scotland, and the incompetence of its senior personnel.

Oddly enough, in dealing with the issues involved, we were very much reliant on EU regulation and much of my time giving expert evidence in Hamilton Sheriff's Court on Monday was spent in dissecting this law. My time spend writing this blog has not been entirely wasted.

The crucial issue was that the South Lanarkshire District case (or part of it) relied on the argument that the food business operator, ECL (Errington Cheese Ltd), had failed to comply with food safety requirements, as set out in Annex II Chapter IX, paragraph 1 of Regulation (EC) no 852/2004.

Specifically, it argued that ECL had "accepted raw materials" (in this case unpasteurised sheep's milk) knowing or reasonably expecting them to be "contaminated with pathogenic microorganisms" so that, even after normal processing procedures, "the final product would be unfit for human consumption".

However, It is a measure of the dishonesty of the Council that, in its official certificates attesting to this unfitness, that it omitted a key phrase found in the EU law.

In the Regulations, it actually states that the food business operators must not only know or reasonably expect "pathogenic microorganisms" to in the raw material, they must also be present "to such an extent" that they would not be neutralised by the processing. That phrase "to such an extent" was missing.

From a technical perspective, the Council had made a serious error. Having found (by dint of extraordinary effort) tiny numbers of organisms from the family of Shiga-toxigenic Escherichia coli (STEC) in the cheese, it averred that in the absence of the "kill step" of milk pasteurisation, the process failed to conform with hygiene requirements.

What the Council failed to understand that the process of cheese-making is itself a "kill step", the process as a whole (involving high acidity, competitive bacteria and low water activity – amongst other factors) securing a higher reduction in bacterial loading than pasteurisation, by a factor of ten. Amazingly, the Council had failed to realise this, even though it had submitted evidence to that effect, in its own productions.

In terms of EU law, though, the error was even more bizarre. As it had asserted that ECL's process had breached food hygiene regulations, I brought to the court's attention Regulation EC No 882/2004 on official controls . This creates a statutory duty on the part of local authorities to enforce food safety law and to "monitor and verify that the relevant requirements thereof are fulfilled by business operators at all stages of production, processing and distribution".

Additionally, we had Regulation (EC) 853/2004 which prohibits the food business from operating unless approved by the "competent authority", and sets out the conditions for approval – the primary requirement being that the business conforms with food hygiene requirements.

The essential point here are that the local authority (in this case Lanarkshire Council) had under EU law approved ECL's cheese manufacturing process and had even renewed its approval, thereby attesting that the operation complied with food safety requirements.

This is very much a peculiarity of EU law, following which a unique "establishment number" is issued which has to be affixed to all product packaging. The local authority is then required to monitor the establishment to ensure that it continues to comply, and to remove (or suspend) the number in the event that that it no longer does so.

What we had, therefore, was a situation up until September 2016 where the local authority had formally attested (on the basis of multiple inspections and approval of the management plan) that ECL complied with food safety requirements.

But then, it changed its mind. It asserted that, despite the operation having been approved by the local authority, which had verified that "the relevant requirements" had been fulfilled and notified the European Commission accordingly, the operation had not after all complied with requirements. On that basis, all the cheese produced prior to the September was certified as unfit – worth some £400,000.

Interestingly, the Council's advocate sought to insist that the primary and exclusive responsibility for ensuring compliance with hygiene law rested with the food business. However, EU law will not allow that construction. Amusingly, the advocate then sought to argue with Scottish law took precedence over EU law, and most indignantly denied that the Scottish courts were subordinate to the ECJ.

This is where we now remain until the Sheriff hands down his judgement, which is not due until the end of March, at the earliest. Whether he accepts my arguments remains to be seen but, whether he does or not, it leaves me wondering how we would have fought the case had we been outside the EU.

As it stands, though, the provisions on unfitness arising from failing to comply with food safety requirements, stem entirely from EU law. When I fought a similar case 22 years ago (also with Errington Cheese, against Lanarkshire Council) we won by fighting solely under the provisions of the Food Safety Act 1990. This time, EU law was the added complication – but (provisionally) it also provided ECL with a defence.

Perversely, even when we leave the EU, we will be left with this law as a legacy of our membership. The mix and match of the UK and EU law has left us with a dog's dinner of a legal code, and it would be good to see it sorted. But we're not even going to get that.

Thus, in this case, we have £400,000-worth of cheese, £300,000 in legal costs and £500,000 in lost business - over a million pounds - all resting of the wording of Annex II, Chapter IX, paragraph 1 of Regulation (EC) no 852/2004.

That's the EU for you ... detail. Without it, Lanarkshire would not have had any case at all. And that's why the media and the politicians will never get to grips with the EU or Brexit. It's not about high-falutin' ideas. It's about details that none of them can hope to master.