Category: Policy & Business

Dutch Farmer Protests

Dutch farmers have been protesting throughout October against new environmental restrictions that the Government of the Netherlands is proposing.  The initial cause of the protests were new regulations on nitrogen emissions, which would require a reduction in intensive livestock production in particular.  However, the demonstrations have grown to encompass a wider range of issues, such a fuel taxes, pesticides use, and a general sense that farming is being blamed for all environmental ills whilst its contribution to the Dutch economy is under-appreciated.  Farmers have blocked major routes with tractors and protested in the capital of the Netherlands, The Hague.   Protests have since spread to many German cities, with the same grievances to the fore – increasingly restrictive legislation and being made the scapegoat for environmental issues.

Brexit: Withdrawal Agreement Bill

Having concluded negotiations with the EU on a revised Brexit Deal last week (see accompanying article), on 22nd October, Boris Johnson attempted to progress his Withdrawal Agreement Bill (WAB) through the remaining stages of the Parliamentary approval process. This involved two key votes;

  1. Second Reading Debate: to approve the General Principles of the Bill to enable it to progress to more detailed scrutiny.
  2. Programme Motion: which provides a timetable to progress the bill through the Committee, Report and Final Third Reading stages. It is only when the WAB passes the Third Reading (final vote by MPs) that it becomes law.

The Government won the first vote by 329 votes to 299, assisted by several Labour MPs from Leave-voting constituencies.  However, it lost the Programme Motion vote by 308 votes to 322.  The PM reacted by “pausing” the Brexit process to speak with EU leaders to get their thoughts on whether the EU would offer the UK another extension which the PM was forced to seek as a result of the Benn Act.  With the EU yet to formally respond, the Brexit process is now in limbo.  The Government has reiterated its desire to achieve Brexit by 31st October, but that is unlikely.

The EU is likely to offer an extension, but its duration is still being debated.  Some are advising an extension until 31st January 2020 (in accordance with the Benn Act) whilst others, notably the French, are mooting a much shorter (15-day) extension to exert pressure on the UK to make-up its mind.  Taking account of these diverging approaches, the most probable path is that the EU offers another ‘flextension’ which can extend to 31st January but can be brought forward if the WAB is ratified before then.  This would leave plenty of time for a General Election to take place.  Labour is dragging its heels on this, as it claims it wants to remove the threat of a No-Deal Brexit.  In reality, a No-Deal could conceivably take place at the end of a Transition Period (currently end-2020) if there was no agreement on the Future Relationship.

Revised Brexit Deal – Impact Assessment

On 21st October, in conjunction with the WAB, the Government released a 69-page impact assessment.  It indicates a cost of £167.1 million with the bulk of the cost (£145m) relating to the setting up of an Independent Monitoring Agency on citizens’ rights.  What was most notable about this assessment was the extent to which agri-food regulations relating to the Ireland / Northern Ireland Protocol were not costed in the analysis.  With over £5.8 billion in trade between NI and GB, based on 2015 estimates, this seems a rather large omission and calls into question the validity of the assessment.

The document also outlined the maximum extent of regulatory (sanitary and phytosanitary (SPS)) checks for agri-food goods going from GB to Northern Ireland.  Documentary and identity checks will apply to 100% of shipments whilst the maximum level of physical checks would be 20% for red-meat and dairy whilst poultry products would have a 50% check rate.  Live animal physical check rates are estimated at 5.5%.  The extent to which maximum check rates would apply would depend on the extent to which GB diverges from EU regulations in the future and whether a more favourable check rate could be negotiated as part of the future trading relationship negotiations.  Canada, via the CETA accord, enjoys a 10% physical check rate for beef.  That should also be doable for the UK. 

For NI to GB trade, there remains some debate as to whether some customs-related regulation would apply.  Whilst it will be much lower than for GB to NI trade, as SPS checks will not apply, there could still theoretically be a requirement for some form of “exit declarations” to be made.  It may take some time for clarity to emerge on this issue.

From a business perspective, some clarity has emerged this month with respect to the shape that the new Brexit Deal with the EU would take.  The direction of the eventual Future Relationship (comprehensive Free-Trade Agreement) is now becoming clear.  Whilst some might continue to argue that this would leave the UK economy worse-off, the real impediment to business now is the continued deferment of a decision on Brexit.  With the avoidance of a No-Deal Brexit, the next-worst outcome is fast-becoming a ‘No-Decision on Brexit’ which is continuing to stall investment. 

Brexit Deal Reached

On 17th October, UK and EU negotiators agreed a new Withdrawal Agreement for the UK’s exit from the EU.  Many thought that such a revised agreement was not possible in the time available and, on first appearances, it is an impressive feat; however, the Deal reached is quite similar to the Northern Ireland-only Backstop arrangement proposed by the EU back in March 2018.  Below are some key points from an agri-food perspective;

  • Financial settlement (‘Divorce Bill’ (£39bn)) and the protection of citizens’ rights provisions: these are unchanged from the previous ‘Theresa May’ Withdrawal Agreement.
  • Ireland/Northern Ireland protocol: which has been subject to intense debate has been changed so that a customs and regulatory border between Northern Ireland and Great Britain has been created.
    •  Customs: this has resulted in the UK-wide backstop put forward by Theresa May being ditched, meaning that Great Britain is outside the Single Market and Customs Union but Northern Ireland is not.  That said, Northern Ireland remains part of the UK Customs Territory.  It will still be able to avail of lower tariffs that the UK introduces post-Brexit, although businesses will initially have to pay the higher EU tariff (if applicable) on imports into Northern Ireland and the difference (EU tariff – UK tariff) could be reclaimed at a later stage.. This is provided that the goods in question remain in NI and State Aid limits are not broken (see point below).  Personal goods (e.g. food carried in personal luggage at airports) would be exempt from duties being imposed between GB and NI.
    • Single Market Regulations: as reported in our 3rd October article (click here), a regulatory border would be imposed down the Irish Sea (between GB and NI) for agricultural and industrial goods.  This means that NI would continued to follow the EU rules in areas such as sanitary and phytosanitary (SPS) regulations whilst creating scope for GB to diverge in future. 
  • Northern Ireland consent mechanism: has been introduced which would give the Stormont Assembly the opportunity to approve the arrangements four years after they come into force (currently envisaged at the end of the transition period in December 2020) and each four years thereafter.  The vote would be based on a simple majority, but if future votes (say in a further four years after) had the support of both Nationalist and Unionist communities, then NI would follow EU rules for a further 8 years.  If consent was not forthcoming, a two-year ‘cooling-off’ period would be initiated to try and find a solution.  If the Assembly was not functioning, current arrangements would roll-over.  This arrangement is still likely to create some problems for long-term business planning (e.g. it may be difficult to do a five-year plan), but as it is based on a simple majority, rather than a veto by one community, it arguably is more stable than the previous UK Government proposals.
  • Labelling: Article 7 of the legal text mentions that a “UK (NI)” label would be used for Northern Irish goods placed on the European Union market where there is a legal requirement to do so.  This will be important from an agri-food perspective for products such as meat and dairy.
  • State Aid: the UK authorities can provide support to agricultural production and trade in agricultural products in Northern Ireland up to a “determined maximum overall level of support” as long as such support is compliant with the WTO Agreement on Agriculture.  This maximum support level will be determined by the Joint Committee overseeing the Ireland/Northern Ireland Protocol and would consider future UK agricultural policy as well as support expenditure to NI agriculture under the CAP during the 2014-2020 period. In practice, this provision seeks to ensure a level playing-field between Northern Ireland agriculture and that in the Irish Republic. However, it should also be worth noting that any tariff differences on agricultural products between the UK and the EU which can be reclaimed by Northern Ireland businesses might also be considered when setting what funding would be available, as this would be a form of Government support.  This has not been confirmed at this early stage but needs to be borne in mind. 
  • Level Playing Field (LPF): this was subject to much concern on the EU side over the fear that in the future, a UK Government which is free from the Brussels’ regulatory orbit would undermine EU regulations to gain a competitive advantage.  The LPF provisions in the previous May Deal (e.g. labour market rules) have been removed to a significant degree.  That said, the Political Declaration still contains a note that if the UK wants to secure a comprehensive Free-Trade Agreement with the EU in the future, it will still need to adhere to strong regulatory standards.

What Happens Next?

In some ways, getting a political-level deal with the EU was the easy bit.  Boris Johnson now has to convince Parliament to approve the Deal.  This is looking like a very tall order, especially as the DUP will not be supporting the New Withdrawal Agreement as they see it as a betrayal.  In the (perhaps unlikely) event that Parliament approves the Deal, the UK would depart the EU on 31st October and enter into a Transition Period where, aside from the UK being officially outside of the EU, very little changes.  The Transition is still due to end in December 2020, although there appears to be scope in the New Withdrawal Agreement for this to be extended.  Such an extension might be needed, as negotiating a FTA with the EU (and getting it ratified) in little more than a year is a very tall order.

If Parliamentary approval is not granted on the 19th October, the Benn Act provisions kick-in and the Government would be obliged to request an extension of EU membership (until 31st January).  This would make a General Election inevitable (it’s probably inevitable in any case) and the PM would play very strongly on the fact that he secured a Deal but the Parliament would not back him.  Given the UK’s first-past-the-post system and the general public’s dismay and fatigue with Brexit, the momentum appears to be with the PM, whether he gets approval for the Deal tomorrow or requires a General Election to do so.  At least, there finally appears to be some clarity with the Brexit process and the 19th October will be pivotal.  Industry needs to get back to focusing on the day-to-day issues and the major challenges facing the economy.  We will be providing further analysis in the near future as the situation becomes clearer.

Queen’s Speech and Ag Bill

With the end of the Parliamentary session on 8th October the Agricultural Bill ‘fell’ as it had not been passed.  The Queen’s Speech which was delivered on 14th October 2019, included the (new) Agriculture Bill which the government intends to introduce for the next Parliamentary Session.  It is expected the Bill will look very similar to that from the previous session.

Although not contained in the Bill itself (only a Policy Statement), it seems that the plans for future farm support have not changed either.  There has been pressure, particularly from the NFU, to delay the implementation of the Agricultural Transition period by a year (to 2022), due to the lack of progress of the Bill, which was original presented to Parliament a year ago.  During the Transition, direct payments in England will be phased out by 2028 and the new Environmental Land Management (ELM) Scheme will be rolled out.

The Queen’s Speech also included the introduction of a new Environment Bill.  Partly, this is to put in place a governance framework to replace that previously undertaken by the EU.  But it will also be the first time environmental principles will have been enshrined in UK law, ensuring there is a ‘cleaner, greener and more resilient country’ for the next generation.  The Bill will include, a system of longer-term environmental targets and a specific focus on air and water quality, biodiversity and natural resources.  In addition, to strengthen environmental accountability, the Environment Bill will establish a new public body; the Office for Environmental Protection (OEP) will monitor progress in improving the natural environment.  Through its complaints and enforcement mechanisms it will replace the role of the European Commission taking ‘a proportionate approach to managing compliance issues relating to environmental law’.  The bill should also bring forward a legal basis for Conservation Covenants, which we have previously written about in the Bulletin.

Payment by Results AES

Promising results have been reported from pilot studies assessing a Payment by Results (PBR) agri-environment scheme.  The Results Based Agri-Environment Payment Scheme (RBAPS) has been piloted in two areas in England between 2016 and 2018.  It has been delivered by Natural England (NE) in partnership with the Yorkshire Dales National Park Authority (YDNPA) and co-financed by the European Commission. The pilots were held in Wensleydale on species rich meadows and grassland for breeding waders and also in Norfolk/Suffolk, delivering plots of winter bird food and flower-rich mixes for pollinators.

During the pilots, farmers had complete flexibility on how to manage their land, but the annual scheme payment was linked to their level of success in delivering the biodiversity outcomes.  The results show, the environmental performance of all the results-based measures was better than their equivalent control sites.  The winter bird food plots performed the best with the scores for the results based approach 43% higher than the conventional scheme control plots during both years of the pilot.  The survey found farmers were more motivated to carry out different management practices to improve the biodiversity results and they were paying greater attention to their result-based sites, carefully considering how to produce results and secure a higher payment rate.  However, with such a short duration of the project, it has not been possible to ascertain whether this initial motivation will wane over time.

In contrast to the conventional action-based agri-environment schemes (AES), that include specific prescriptions for farmers to follow which are expected to result in a desired environmental outcome, in the results-based approach, the value of payment is directly linked to the level of environmental outcomes achieved.  Experience from the pilot is being fed into the development of post-Brexit environmental land management policies in England.  The study identified five particular challenges to ‘mainstreaming’ the approach;

• The time taken to undertake self-assessment of results by participants, especially if the timing of assessments coincided with peak agricultural activity on the farm
• One of the main challenges is the need for extensive training and advice, particularly in the early stages so that farmers develop the necessary skills and confidence
• The resources necessary to verify the results.  During the pilot, all of the results were independently assessed annually, but this would not be possible if the scheme was rolled out nationally, due to the sheer number of assessments required.  However, the pilot did show a high level of self-assessment accuracy, and some measures may not require annual assessment.
• Being able to manage the budget when there is the potential variability in performance.  But the pilot suggests, even in challenging growing seasons, average performance levels emerge and these could be used for budgeting.
• The development and testing of a much wider range of result measures which will require considerable technical expertise and a lot of time for testing.

Defra has agreed to continue to fund the project, which also looked at how accurately farmers could self-assess their own results, tested the cost-effectiveness of a RBAPS and explored participants and stakeholder attitudes, for a further two years.  This will inform future policy development.  The full report can be found at: http://publications.naturalengland.org.uk/publication/6331879051755520

US Impose Tariffs

The US is introducing retaliatory tariffs on a whole raft of products imported from the EU, including food.  The full list includes items from airplanes to bed linen (details can be seen at https://www.easy-serveur17.com/eucolait2403/optimis/soft/userfiles/files/EU_Large_Civil_Aircraft_Final_Product_List.pdf ).  But, significantly for European farming, it also covers dairy products, frozen and processed pig meats and Scotch malt whisky.  For dairy exports, cheese is likely to be the most heavily affected in the UK.  Tariffs here have been set at 25% ad valorum (25% of the value of that particular product).  Last year around 4% of the UK’s total cheese export went to the US, almost all of this would have been hit by the new tariffs.  All of the UK’s butter exports to the US will be subject to the new tariffs, but the US accounted for less than 1% of UK butter exports last year.

For UK pig producers, exports of frozen pork is likely to be the most impacted.  Historically, the UK has not exported processed pork meat products to the US.  However, last year about 11% (11,200t) of the UK’s total frozen pork exports went to the US.  All of this would be subject to the 25% ad valorum tariff.  But whether there will be any significant impact is difficult to tell because the US imports more of a premium product; the average price of UK frozen exports to the US is £3,402 per tonne compared to £1,232 per tonne to the rest of the world.  US consumers for the products in question are driven more by quality than price.

But for the Scotch malt whisky sector the tariffs (at 25%) could have more of an impact.  Scotch whisky exports to the US in 2018 reach £1bn and represented 22% of whisky exports by value.

The tariffs come into effect from 18th October.  They have been imposed on the EU after the WTO ruled the EU gave illegal subsidies to the airplane manufacturer Airbus.  This gave the company an unfair advantage over its rivals, including the US company Boeing.  The WTO has therefore allowed the US up to $7.5 billion in additional tariffs, to recuperate the estimated loss as a result of the Airbus-Boeing dispute.

 

Budget Date

The date for the next Budget has been announced as the 6th November.  The Chancellor, Sajid Javid has stated that this will be ‘the first Budget after Brexit’.  We shall see.

UK Government’s Backstop Alternative

After weeks of speculation interspersed with non-papers, the UK Government formally tabled its proposals on an alternative for the Backstop on 2nd October.  In his accompanying letter, the Prime Minister stated that he believed the proposals were a ‘reasonable compromise’ and represented a ‘broad landing zone’ in which a deal could take shape.  Whilst a draft legal text of the new Protocol on Ireland / Northern Ireland was also presented to the EU Commission’s Task Force 50, this document was not made publicly available. Instead, a 7-page explanatory note has been published by the UK Government and is accessible via: https://www.gov.uk/government/publications/uk-proposals-for-a-new-protocol-on-irelandnorthern-ireland

Proposal Key Points:

  • EU-Aligned Regulatory Zone: covering both agricultural and industrial goods would be created on the island of Ireland.  This would include not just sanitary and phytosanitary (SPS) regulations and agri-food rules but would also include regulations relating to ‘all goods’.   The aim is eliminate regulatory checks for trade between Northern Ireland and Ireland.  Early indications suggest that this is being viewed positively by the EU as it directly addresses the problematic SPS issue which is relevant to over 40% of cross-border trade in Ireland.  It also means that there would be an expanded range of checks on goods shipped from GB to NI as currently it is mainly live animals, plant and fertiliser products which are checked.  However, the proposals also state that there would be ‘unfettered access’ for NI goods entering GB.
  • Regulatory Zone Contingent on Consent from NI Institutions:  the Northern Ireland Assembly (Stormont) would have to agree to the rules set out above.  Such assent would be required before the end of the Transition Period and every four years thereafter to overcome what the UK Government sees as a democratic deficit if significant sectors of the NI economy are governed by laws over which it has no say (i.e. EU-laws).  This would also include an ability to exit certain areas of regulatory compliance, or to withhold consent to laws becoming applicable.  In such cases, arrangements would not enter into force or would lapse (after 1 year), and arrangements would default back to existing rules.  However, it is currently unclear which rules these would be (UK rules?, previous EU rules?).  This provision presents significant problems to the EU as it could theoretically give the NI Assembly a veto over the application of EU rules – something which is not available to other non-EU entities.  Also, as the Northern Ireland Executive has now been suspended for over 1,000 days, it is not clear who will give consent.  Even if the Stormont assembly becomes functional again, what happens if gets suspended oncve more?  Do decisions then fall back to the Northern Ireland Office or both the UK and Irish Governments as co-guarantors of the Good Friday Agreement?  The EU is going to scrutinise this issue closely.
  • Northern Ireland to be fully part of the UK Customs Territory: it would no longer be part of the EU’s Customs Territory once the Transition Period is over.  This means that all Customs processes (including checks) to ensure compliance would need to take place on trade between Northern Ireland and Ireland.  That said, the British Government is keen to point out that the vast majority of Customs procedures (e.g. declarations) would take place electronically, with some simplifications, and any checks would be conducted at traders’ premises or other points in the supply chain, but not at the border.  It is seeking a commitment from the EU to never conduct checks at the border in the future.   As Customs checks would take place away from the border in both Northern Ireland and Ireland, this effectively establishes two customs border zones in each jurisdiction.  This is highly problematic for the EU, especially Ireland, as in some ways it puts a degree of separation between the customs regime in Ireland and that of the remainder of the EU. It also raises multiple other questions over how unscrupulous traders would be identified as any price differentials created by varying tariffs or differences in VAT and Excise would be quickly exploited by rogue traders, often with no registered business premises.  It raises the prospect of mobile customs units becoming visible in the border region which could prompt a negative reaction by local communities.
  • Special Provisions for Small Traders: linked with the previous point, simplifications in Customs procedures would have SMEs as a core focus in order to minimise the regulatory burden. This includes a trusted (authorised) traders’ scheme to make compliance easier when trading between NI and Ireland.  It envisages ‘temporary admissions’ to permit short-term movements of goods across the border (presumably to facilitate trade shows for instance).  In addition, some small traders would be exempted from certain procedures and may even be exempted from paying duty altogether.  There would also be additional support for traders in most need to assist them with compliance. These provisions present significant challenges. For instance, could larger firms simply create multiple companies so as to qualify for exemptions? From an EU perspective, particularly given difficulties that the UK has had in the past in dealing with VAT fraud, there would be major questions on whether such proposals are legally operable and would undermine the integrity of the EU Single Market. 
  • Future UK-EU Trading Relationship: is still envisaged to consist of a comprehensive Free-Trade Agreement (FTA).  Much of the detail not mentioned in the Government’s proposals (e.g. how Rules of Origin would be addressed) would be dealt with after the UK formally exits the EU. Again, the EU will have major difficulties with this as it is unlikely to view such arrangements as a legally operable insurance mechanism to prevent a harder border emerging in the future on the island of Ireland.

Overall, the UK proposals represent a significant step forward, but it is highly questionable whether an agreement (definite landing zone) is in sight as a result of their tabling.  A formal response from the EU is expected on 3rd October (afternoon).  This will test the proposals against the three key objectives of the backstop: preventing a hard border re-emerging on the island of Ireland, preserving north-south cooperation and the all-island economy, and protecting the EU’s Single Market and Ireland’s place in it.  It is obvious that having separate Customs regimes in both jurisdictions would constitute a hardening of the border.  The proposals also raise questions for the competitiveness of the all-island economy and creates some discomfort for Ireland as part of the EU Single Market and Customs Union. Therefore, a lukewarm response is likely from the EU.  That said, it will be keen for talks to continue and is likely to state the UK proposals merit further discussion, not least because the EU is keen not to be blamed for the failure of negotiations any resulting ‘No-Deal’.

Ultimately, the EU is likely to call for closer Customs alignment between NI and Ireland/EU.  An indication by the UK that its tariff levels for sensitive products (particularly agri-food) would remain similar to the EU’s, but within an independent UK trade policy, would help.  This would also help UK farmers to safeguard against competitive pressures from the world market, if tariffs were suddenly reduced significantly.  Reaching an agreement will take time and it is increasingly unlikely that this will be done by 31st October, making yet another extension more likely by the day.

NFUS Joint Venture Hub

A land matching service has been launched in Scotland.  The Joint Venture Hub is aimed at bringing together young, enthusiastic farmers who cannot afford to buy land and those looking to take a step back from day-to-day farming, but with no successor to run the business and therefore faced with having to split up and sell off the farm.  The ‘platform’ is being run by NFU Scotland and both members and non-members can post an expression of interest from which joint ventures can be explored.  The site can be found at https://www.nfus.org.uk/policy/joint-venture-hub.aspx and includes information on tenancies, contract farming agreements and share farming arrangements.

Land Market Survey

The RICS and the Royal Agricultural University (RAU) have decided not to publish their latest edition of the Rural Land Market Survey.  Survey results for the first half of the year are usually released around now, showing land price data from actual sales (transaction-based measure) and also an ‘opinion based measure’ of land values.  However, such low feedback on the latter has led to the decision not to publish the results.  The opinion-based measure, is a hypothetical estimate from surveyors of bareland prices. The transaction-based measure is from actual sales and also includes a residential component where its value is estimated to be less than 50% of the total, and is therefore usually higher.  Results for the transaction-based measure have been released and are shown in the table below.

H1 2019 Average Farmland Value by Region – RICS/RAU
Region £/acre £/hectare
South East 15,133 37,394
Yorkshire/Humberside 13,478 33,304
South West 11,609 28,686
East 10,538 26,039
West Midlands 10,377 25,642
North West 9,230 22,807
Wales 8,508 21,023
East Midlands 8,091 19,993
North East 6,757 16,697
Average England & Wales 10,619 26,240

It can be seen there is a large variation in land values between the regions from £6,757 per acre (£16,697 per hectare) in the North East to £15,133 per acre (£37,393 per hectare) in the South East.  The overall average in England and Wales for farmland sold in January to June 2019 was £10,619 per acre (£26,240 per hectare).  This takes it back above the £10,000 per acre benchmark, the average price for H2 2018 was £9,571 per acre (£23,650).

The opinion-based measure was introduced back in 2004 due to the declining sales of agricultural land making the statistics less reliable and became the ‘preferred’ measure.