Richard North, 12/09/2020  

I am sure there was a time when prime ministers made statements, we tended to believe what they said.

That went out of the window, big time, with Blair and one learnt also not to trust Cameron, although I think many of his infelicities were errors rather than lies – the man seems to be out of this depth on so many things, and especially anything to do with the EU.

Certainly, when it comes to Johnson, the balance is firmly against giving him the benefit of the doubt. With a sociopath who has made a career out of telling lies, the first response to anything of significance that he says (or writes) is to check it for truth and accuracy (they're not necessarily the same things). Pending that, the default value is to assume it's a lie.

Thus, when the man writes, at length, in the Telegraph to justify his UK Internal Market Bill, nothing of what he asserts can be taken at face value.

For instance, Johnson claims that, in the Withdrawal Agreement, "we agreed to do some light-touch checks on goods arriving in Northern Ireland, in case they should go on to Ireland, in order to avoid checks at the North-South border". It was also decided, he writes, to create a Joint Committee, "in which we would thrash out the details of these new arrangements".

And, "it is here", he asserts, "that things risk coming unstuck". We are now hearing, he says, "that, unless we agree to the EU's terms, the EU will use an extreme interpretation of the Northern Ireland protocol to impose a full-scale trade border down the Irish Sea".

We are also being told "that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland, but that they might actually stop the transport of food products from GB to NI".

However, if we contrast this with what the Protocol actually says, we find that, in respect of goods moving to Northern Ireland from another part of the UK, Union customs duties are not paid unless the goods are "considered to be at risk of subsequently being moved into the Union".

Any duties collected are not remitted to the EU and there are provisions for refunding them to operations where the goods are kept within Northern Ireland.

As to whether goods shall be considered "at risk", the criteria are established, not by diktat, but by the Joint Committee. On this basis, there is no question of the EU imposing any tariffs on goods moving from Great Britain to Northern Ireland, as Johnson claims. Under the protocol, it has no power to do so. It is up to the Joint Committee.

Then, if the UK disputes any decision of the Committee, it can go to arbitration, under the terms I discussed in my post yesterday. And then as a longstop, Article 16 of the Protocol makes provision for safeguards.

These are similar to Article 112 in the EEA Agreement: "If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures".

There are the usual caveats, but basically the UK under the circumstances defined can take unilateral action to protect against any damaging application of the Protocol provisions.

As to stopping the transport of food products "from GB to NI", this is not going to be the case, as long as goods entering from Great Britain conform with the relevant EU law. This is more or less the same condition that will apply to goods exported directly from Great Britain to EU Member States.

Here, we might have a little difficulty. As I pointed out in my post in January 2017 - yes, nearly four years ago – the UK will have acquired third country status. Therefore, to trade in foods of animal origin, the UK must be on the list of approved third countries for each specific category of food for which trade is undertaken.

This, interestingly, is not an automatic process. Before a third country can be approved, an evaluation of the country and its competent authority has to be carried out by the Health and Food Audits and Analysis Office, located in Grange, Ireland (European Commission, Directorate General for Health and Food Safety). And only once approved are the "competent authorities" recognised.

The requirements for each category of food products are specified in Annex III to Regulation (EC) No 853/2004. These must be checked and guaranteed by the competent authorities of the Non-EU country before an establishment can be listed as an EU approved establishment. The competent authorities also must inform the Commission if an establishment is no longer fulfilling the above mentioned requirements.

The Non-EU country must have a residue monitoring plan (in accordance with Council Directive 96/23/EC) for the category of food of animal origin and must appear in the list of countries with an approved residue monitoring plan (Commission Decision 2011/163/EU as amended). Then, for food products concerned, the Non-EU country must have a salmonella control program in animal population in accordance with Regulation (EC) No 2160/2003.

According to the UK website, "The European Commission will vote on whether to list the UK as a 'third country' (non-EU-country)", which would suggest that it hasn't voted yet – which very much seems to be the case.

EU officials are stating that the UK has so far failed to provide the necessary information on its food standards regime for listing to be approved. Barnier says that, "More clarity is needed for the EU to do the assessment for the third-country listing of the UK".

As to Northern Ireland, the website says: "Until negotiations with the EU conclude, there will be some areas without complete certainty, but full guidance will be provided by the end of the transition period".

Up to press, I had assumed that the administrative details to secure third country listing would have been resolved fairly simply but, if the UK is contemplating a no-deal TransEnd then these details might not be settled in time. Thus, in theory, the UK would not be able to export foods of animal origin to EU Member States – or ship them over to Northern Ireland.

This, though, as I pointed out in February 2017, is not a question of the EU blocking British trade. We have moved outside the "walled city" and must conform with pre-exiting rules in order to send our products back in.

As it stands, we've had over four years to fix our third country listing, and if we haven't sorted it out by now, then there is something gravely amiss. But even then if there were serious problems, for Northern Ireland, there can be no doubt that we could invoke safeguard measures.

Now, here is the rub. Johnson is citing these difficulties (imagined and real) as justification for his Bill, telling us to "take the threats off the table".

But this Bill only deals with movement of goods from Northern Ireland to Great Britain. The problems, such as they are, to which he refers in his Telegraph article relate to movement from Great Britain to Northern Ireland – which is unaffected by the Bill. Nevertheless, Johnson goes on to assert that:
It is now also clear that we need this Bill to protect the free flow of goods and services between NI and the rest of the UK, and to make sense of that commitment in the EU withdrawal agreement – that NI is part of the UK customs territory. It is therefore crucial for peace, and for the Union itself. We must get this Bill through.
Yet, unless I have drastically misread the Bill (Clause 42 applies), it is a complete irrelevance to the flow from GB to NI and, for the flow in the opposite direction (to which the Bill does apply), "unfettered access" is already written into the Protocol.

Needless to say, Charles Moore seems to have supped at the Kool Aid, but for anyone who has actually read the relevant parts of the Bill and the Protocol, it seems we are being taken for a ride. The UK is about to embark on the process of breaching international law for no good reason.

Also published on Turbulent Times.

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