Tag: Brexit

Trade Update

The Office for National Statistics (ONS) recently published UK trade data for January 2021.  Unsurprisingly this has revealed significant drops in food and live animals trade with the EU.  Whilst the 64% drop in exports to the EU captures the headlines, imports from the EU have also dropped by 24%.  However, there are multiple factors at play and it is still too early to tell with accuracy how much trade with the EU will change as a result of Brexit. 

As the chart below also reveals, there was a significant increase in trade with the EU from September 2020 as businesses stockpiled in advance of potentially significant border friction arising from a No Deal Brexit or a bare-bones trade deal.   As it happened, the Trade and Cooperation Agreement (TCA) was comprehensive in the sense that there were no tariffs or quotas on agri-food trade; however, it did not include a veterinary agreement and left exporters to the EU with just one week to prepare for border controls.  With the UK phasing-in controls on imports from the EU as a result of its Border Operating Model, the implementation of which has now been delayed until the year-end / early 2022, it was evident that UK exports to the EU would suffer more in percentage terms than imports.  The January data has borne this out. 

UK Food and Live Animals Trade with EU and Non-EU Countries – January 2010 to January 2021 (£ Million)

Source: ONS

Looking at the HMRC trade data (the source of the ONS figures) in further detail shows that exports of chilled beef to the EU have declined by 59% in January 2021 versus January 2020.  Sheep and goat meat exports to the EU are down by 29%, pig meat exports to the EU are 78% lower, whilst butter and cheese exports are down by 67% and 61% respectively versus a year earlier.

Whilst the data are of concern, more time is needed before definitive conclusions can be drawn.  Although there is still significant friction on trade and many of the TCA’s so-called ‘teething problems’ are in fact permanent fixtures, the situation has improved since January and traders who are well-organised are getting through the EU border controls. That said, given the complexity of UK-EU supply-chains, high value food products with multiple ingredients are experiencing significant issues, many UK traders are now looking at setting up distribution hubs and some processing facilities in the EU.  This will permit them to send loads to a single destination, thus cutting down the paperwork significantly.  From there, if further processing is needed, it will take place in the EU before moving to its end destination. 

It will be mid-year before a definitive picture will emerge as agri-food trade is often lower during January to March.  Trade should recover somewhat but probably not to the same levels as before.  The significant decline in EU imports also presents opportunities for domestic suppliers to capture a greater proportion of the UK market, particularly in perishable agri-food products.  This will mean that there will be winners as well as losers as a result of the TCA.  That being said, supply-chains need time to adapt and such opportunities cannot be realised overnight. 

Trade & Agriculture Commission Report

The Trade and Agriculture Commission (TAC), the body set up to advise the Government on future trade deals, has published its ‘final’ report on 2nd March.  However, as the TAC will soon move onto a statutory footing, giving it a greater role in evaluating future Free Trade Agreements (FTAs), we will be hearing more from this body in the future.  This report, therefore, is likely to be the first of several.

The report itself is a well-polished document and sets out how much UK consumers are currently spending on food and drink (£46.60 per person per week in 2018/19), the volume of food consumed by food group, and the origins of food being consumed (55% of food consumed is grown and produced in the UK).  It also outlines the implications of leaving the EU, highlighting the disruption caused to devolved regions from friction on UK-EU and GB to NI trade as well as the changes in regulatory authority from the European Food Safety Agency to UK agencies.  It urges that these issues need to be resolved quickly.

The TAC proposes an overarching vision for UK agri-food which centres on having an ambitious trade policy that ‘contributes to a global farming and food system that is fair and trusted by all its participants, including farmers, businesses and citizens, from source to consumption’.  It also calls for food to be ‘safe, healthy, affordable, produced in a way which does not harm the planet, respects the dignity of animals and provides proper reward for those involved.’

Linked with this, the TAC suggests six guiding principles to develop a value-generating and values-driven UK trade policy. These are;

  • Promote the liberalisation of trade, to positively influence innovation and productivity, and price and choice for consumers
  • Prioritise a thriving domestic agri-food sector supported by complementary domestic and trade policies
  • Ensure that agri-food imports meet relevant UK and international standards on food safety and biosecurity
  • Match tariff-free market access to relevant climate, environment, animal welfare and ethical standards, remedying competition issues arising where permitted imports do not meet relevant UK and international standards
  • Lead change, where needed, to the international framework of rules on trade and relevant standards, to address the global challenges of climate change and environmental degradation
  • Support developing countries in accessing the full benefits of the global trading system.

The guiding principles reveal the balancing act that the UK is trying to achieve by liberalising trade on the one hand but safeguarding standards on the other.  The ambition of matching tariff-free market access over time provided standards can reach relevant UK/international requirements is arguably the most complex.  It suggests some form of ‘nuanced’ tariff system which could potentially add (yet) another layer of bureaucracy to an agri-food sector already struggling to implement the requirements of the UK-EU Trade and Cooperation Agreement (TCA).  Much will depend on how these high-level principles are implemented in practice as they are open to differing interpretations. 

The report sets-out 22 recommendations for the UK Government. These can be grouped into five areas;

  1. Develop a bold, ambitious agri-food trade strategy: aligned to a broader UK Food Strategy that would seek to provide a unifying logic and direction for all UK devolved regions, Government departments and industry stakeholders . It would also strike and appropriate balance between liberalising trade and safeguarding key standards. This is certainly something that the UK should aspire to. However, it is especially challenging given that the interests of UK Devolved regions looks set to diverge further as each implements its own agricultural policy and Northern Ireland remains subject to EU Single Market rules for agri-food goods.
  2. Provide international leadership on key issues such as climate change: the opportunities arising from hosting the G7 summit and COP26 this year should be grasped to show the UK’s leadership credentials not just on climate change but on animal welfare, labour rights, ethical trading and combatting anti-microbial resistance. One of the UK’s key objectives from COP26 should be to develop a more robust methodology to accurate net emissions from each farming sector (i.e. gross emissions less on-farm sequestration). 
  3. Continue to strengthen the UK’s approach to negotiating and scrutinising trade agreements: lessons from the TCA should be applied elsewhere.  Future trade deals need comprehensive impact assessments considering both UK-wide and devolved issues. These should also consider qualitative impacts where quantitative measures are lacking. Presumably, the TAC would play a key role here once its Terms of Reference have been agreed. 
  4. Enhance export promotion, market access and marketing: the TAC highlights the UK’s food ‘offer’ being one of quality, traceability, heritage, safety and high environmental and welfare standards.  It urges that opportunities to grow exports beyond the negotiation of trade agreement need to be embraced energetically by the UK Government.  Arguably, the UK is behind the likes of New Zealand, Netherlands and Ireland in this regard and such initiatives need to be embraced at the highest levels in Government if they are to make an impact in key markets such as China.  The TAC rightly highlights the potential offered by ‘heritage’.  Globally, consumers are increasingly seeking ‘experiences’ and authentic British produce is highly-regarded in many regions.  In this era of Covid-curtailed travel, food is a key means to experience another culture. The strong country associations of iconic products such as Stilton, Welsh lamb and Scotch beef have the potential to be a major source of competitive advantage.
  5. Align trade, aid and climate change policies relating to agri-food: so that these work together to strengthen UK relationships with developing countries over time, to diversify Britain’s food supply, support its food security goals and overseas economic development. Aligning these policies is worthwhile, but arguably this policy alignment should be wider and include domestic agricultural policy which was not given much emphasis by the TAC but is a crucial part of the policy framework.

The key difficulty for the TAC was that it was set-up in July. By then, negotiations with the US, New Zealand and Australia were already underway.  Recently, the TAC Chairman admitted that he had no visibility of how those negotiations are going.  This is a concern because what has already been negotiated with these countries, particularly the US, might contradict what the TAC is recommending.  The true litmus test will be the extent to which the UK Government and Parliament takes on board the TAC’s recommendations when concluding and ratifying FTAs with other countries.  Time will tell as to how much influence the TAC ultimately has in practice.  The report is accessible via:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/969045/Trade-and-Agriculture-Commission-final-report.pdf

UK-EU TCA Implementation

The UK-EU Trade and Cooperation Agreement (TCA) is continuing to experience ‘teething problems’.  This is perhaps hardly surprising as the agreement (click here for summary) was only agreed on Christmas Eve, with implementation beginning just over a week later.  From an agri-food perspective, these difficulties primarily relate to the Northern Ireland (NI) Protocol and Sanitary and Phytosanitary (SPS) issues which are examined below. Rules of Origin have also caused upheaval, but this issue was examined in a previous article (click here).

NI Protocol

Goods shipped from GB to NI are now subject to EU customs and regulatory controls upon entry into Northern Irish ports (e.g. Belfast and Larne).  It was obvious that difficulties would emerge both in terms of logistics but also from a political perspective.  Although some grace periods are in place, varying from 3 to 12 months, many businesses were unprepared for the new regulatory requirements.  There were numerous reports of GB-based firms being simply unaware of the new customs and SPS requirements.  This caused substantial delays in some cases.  Given the difficulties which have arisen, there was a meeting on 18th February of the Joint Committee overseeing the implementation of the Protocol and NI business groups.  The UK Government was represented by Michael Gove whilst the EU Commission was represented by its Vice President, Maros Sefcovic.  NI business groups called for pragmatism and are seeking the following;

    • Grace period extensions: to permit traders to have a longer timeframe to adapt to the changes set out in the Protocol.  This, they claim, would help to reduce pressure on supply-chains and give greater certainty to businesses that trade between GB and NI.  
    • Veterinary agreement: between the UK and the EU to reflect the low risk involved as both parties’ standards are effectively the same, particularly on trade from GB to end-users in NI.

The veterinary agreement issue is examined in further detail below.  It remains to be seen what the UK and the EU will be able to agree on the NI Protocol.  Michael Gove had already called for a grace period extension until 2o23.  The recent appointment of David Frost (previously Chief Brexit Negotiator) to the Cabinet to oversee UK-EU relations, a role which will also cover the NI Protocol, will add an uncertain dynamic as the Gove-Sefcovic working relationship had functioned quite well.  It remains to be seen what the EU will offer, but it is obvious that businesses need significantly more time to adapt and that rising political tensions need to be quelled.

Sanitary and Phytosanitary Issues

There were minimal easements in the SPS area within the TCA.  This, in addition to the EU implementing its border controls fully from January, meant that UK exporters were suddenly faced with a substantial increase in paperwork with only a few days’ notice.  Some have reacted by limiting the number of consignments being shipped to the EU until they get a greater understanding of how the procedures work.  There have been reports of hauliers being unwilling to depart warehouses, processing plants etc. until the paperwork for each shipment is in order.  As a result, port traffic volumes are lower than normal.  Holyhead-Dublin volumes are at 50% of normal levels.  Dover-Calais volumes are also down, but some recent evidence suggests they have been recovering in comparison with the drops witnessed in January.  As freight volumes increase during the spring, as is traditionally the case, border control systems are going to be tested.  Especially as additional certification and checks will be required on imports into the UK from April and will become fully operational in July.

Already there is evidence of insufficient veterinary capacity at ports. This creates backlogs for shipments needing to undergo physical checks.  These are effectively the same as the levels of checks that countries trading with the EU on WTO MFN terms experience.  Such checks, when coupled with sampling in some instances, can result in significant delays and create a major risk of product value deterioration.

To address this issue and the difficulties arising from the NI Protocol, the prospect of a UK-EU SPS (veterinary) agreement has been mooted. Here, there are two potential options:

  1.  ‘Swiss-style’ SPS agreement: where the UK would align with, and follow, the EU’s standards as they evolve in future.  The Ulster Farmers’ Union (UFU) has stated that it would support such an arrangement. 
  2. New Zealand-style agreement: where physical checks on red meat shipments for instance will be lowered from 15% to 1% to reflect the low risk levels and high alignment in standards.

The EU has stated that a veterinary agreement is ‘on the table’, however, they would envisage this being based on alignment with EU standards (i.e. Swiss-style).  Given the importance that the UK placed on sovereignty during the negotiations, it is unlikely to opt for this approach, particularly with David Frost at the helm.  However, a New Zealand-style agreement might be viewed more favourably.  Whilst this will not obviate the need for some border controls, particularly on GB-NI trade, if these could be moved in-land for ‘authorised (trusted) traders’, it would reduce the visibility of such regulatory checks to a significant degree. 

Whatever form a potential veterinary agreement between the UK and the EU would eventually take, the UK will insist on having the right to diverge in the future, if it so wishes (e.g. to do a trade deal with the US).  In such a scenario, the UK would give a notice period (e.g. the EU-NZ agreement has a 6-month notice period) and it would then be likely that SPS controls would revert back to the current default, with some additional arrangements under the NI Protocol.

What is increasingly clear is that the UK-EU relationship will be continually subject to negotiations.  In effect, the ‘teething problems’ are more like a permanent toothache and will require constant attention to keep their impact to ‘manageable’ levels.  The appointment of David Frost to the Cabinet confirms this.  Therefore, one should not see the ending of the Transition Period in January as the ‘end of Brexit’, perhaps it is more like the ‘end of the beginning’ of the new era of UK-EU relations. 

UK-EU TCA ‘Teething Problems’

Having been agreed on Christmas Eve and becoming effective just over one week later, it is unsurprising that challenges have arisen for agri-food traders as a result of the UK-EU Trade and Cooperation Agreement (TCA).  The TCA (click here for summary) is perceived by many to be a ‘thin’ deal as it only focuses on delivering tariff-free and quota-free trade in goods; it delivers little in terms of services and reducing trade friction (non-tariff barriers).

It is in relation to the latter that agri-food trade has been significantly affected, as the EU’s border controls on UK exports became effective immediately.  Trade frictions have been experienced in two key areas:

  1. Customs and Sanitary & Phytosanitary (SPS) controls: whilst there are some limited easements in the TCA on Customs issues (e.g. allowing the pre-lodgement of documents), these are less than many would have hoped for.  There are even fewer easements in the SPS area with most of these limited to trade between GB and Northern Ireland.  Here, a grace period has been agreed which varies from 3-12 months for specific items.  As a result, traders have suddenly been faced with a substantial increase in paperwork with only a few days’ notice.  Some have reacted by limiting the number of consignments being shipped to the EU until they get a greater understanding of how the procedures work.  Hauliers are unwilling to depart warehouses, processing plants etc. until the paperwork for each shipment is in order.  This has meant that port traffic volumes are lower than normal.  For instance, traffic on the Dublin-Holyhead route is down by 50%.  Volumes traditionally start to increase during the spring.  This will be a key test of the ability of border control systems to cope, especially as additional certification and checks will be required on imports into the UK from April and will become fully operational in July.

When both the UK and EU border controls are fully operational, the physical check rates for SPS purposes will be as follows:

    • live animals – 100%
    • minced & poultry meat, dairy products & eggs – 30%
    • red meat & poultry products, ambient dairy & eggs, fertiliser – 15%
    • semen/embryos, animal by-products – 5%; highly-refined products – 1%

These check rates are effectively the same as the levels of checks that countries trading with the EU on standard WTO MFN terms experience.  A proportion of these loads will then be subject to sampling.  Selections will be risk-based and shipments could be delayed by several days which will have a significant impact on product value deterioration for the ‘unlucky loads’ affected. 

  1. Rules of Origin (RoO): essentially determine the ‘economic nationality’ of a goods consignment.  They aim to prevent goods manufactured in third countries, but routed through the UK (or EU), taking advantage of the zero tariffs.  They are particularly significant for industries (e.g. car manufacturing, composite foods) where components/ingredients are sourced from multiple countries.  RoO can be expensive for businesses as they have to demonstrate the origin of their product.  Whilst the TCA has allowed traders up to 12 months to supply evidence that the goods they are trading between the UK and the EU meet RoO requirements, this is considered to be of limited use as the evidence will still be required.  The TCA also allows both the UK and EU to count inputs from the other party when assessing the origin of goods.  The UK had wanted to include content from other countries towards meeting the rules of origin requirements (e.g. Canadian wheat used to produce flour for bread-making) but this was rejected by the EU.

There are three general levels of RoO, all of which must be met in order for a good to be traded between the UK and the EU on a tariff-free basis:

    • Eligibility of goods: do the goods concerned meet the RoO criteria (e.g. ≥85% of content by weight) is eligible for tariff-free trade?
    • Certification: can the trader provide adequate certification that the goods are eligible (e.g. Rules of Origin certificate)?
    • Shipping and product-specific requirements: has the end-product undergone sufficient processing in the UK/EU before it is subsequently traded.  Generally speaking, if there is a change in the tariff code as a result of processing, it would be deemed as sufficient.  Other issues can include means of transportation, cumulation arrangements etc.  Retailers such as Marks & Spencer who operate a distribution hub covering the UK and Ireland have been particularly affected by this issue.  Some of their products are procured from the continent in large consignments and then broken down into smaller consignments for shipment to Ireland.  As such products have not undergone sufficient processing, a tariff is payable upon re-entry to the EU. 

Generally speaking, if a consignment fails on one of these levels, then the products will fail to meet RoO requirements.  This is why Rules of Origin are fiendishly complex.  

For each business, it is vital to assess how the TCA will affect the products that it trades, not just between Britain and Europe but also between GB and Northern Ireland, where the NI Protocol is now operational.  The challenges here have  prompted some suppliers (e.g. Ethical Dairy Company) to cease serving NI customers.  From a business perspective, trade has become more complex.  But, once businesses become more familiar with the specific requirements that apply to their goods, some of the teething problems will be overcome.  However, the UK-EU trading relationship has fundamentally changed, meaning some of the challenges are set to become permanent fixtures.  It is likely to mean more single-product, single-consignment loads being traded as opposed to the multi-product, multi-consignment shipments of the past.  This will have an impact on value-added, particularly on high-value exports (e.g. high-end prime boneless beef cuts). 

Finally, it merits mentioning that in terms of SPS especially, the TCA is a framework that can be built upon.  Particularly in terms of reducing the levels of physical checks in the future.  However, this is contingent on close alignment on standards between the UK and the EU.  Here, the British Government is going to have a delicate balancing act in terms of the trade agreements it completes with other countries and the importance it places on trade with the EU. 

Brexit Deal

On 24th December, the UK farming industry has received an early Christmas present as a Free-Trade Deal (FTA) was agreed with the EU, meaning that agricultural goods’ trade with the EU will not be subject to tariffs or quotas.  This Trade and Cooperation Agreement should minimise the disruption when the Transition Period ends on the 31st December.  However, with a whole range of Non-Tariff Measures (NTMs) (checks, paperwork etc.) being imposed from that point, there will be added friction.  In the case of seed potatoes, exports to the EU will be prohibited which is a major blow to regions such as the East coast of Scotland, where seed potatoes is a major agricultural sector.  This article examines some of the top-level implications of the FTA.  However, with the agreement text (including Annexes) running to 1,246 pages, we will digest it further over the coming days and weeks and provide further updates as appropriate.

A mere 1,644 days since the EU referendum, and after a whole series of missed deadlines, the deadlock was finally broken on Christmas Eve.  As previous articles mentioned, the negotiations culminated in a frantic final haggle on fish quotas.  When a breakthrough was achieved on this issue, the remaining level playing field (LPF) and governance issues were quickly addressed so that the Deal could be announced on Christmas Eve.  The key provisions of the FTA are:

  • Trade in goods: will be tariff-free and quota-free on all goods trade between the UK and the EU.  This includes agri-food products.
  • NTMs: will be applicable on UK exports to the EU from January.  For EU imports to the UK new rules will become applicable on a phased basis between January and June 2021, based on the provisions of the UK Border Operating Model (see previous article).  Linked with NTMs, additional provisions of the Deal include;
    • Rules of Origin (RoO): some rules have been relaxed for up to 1 year so that companies have more time to gather the information necessary to meet RoO requirements.  These are basically local content rules which need to be met to ensure that goods traded between the UK and the EU are eligible for tariff-free treatment.  As a rule of thumb for agri-food products, 85% or more of the goods’ contents (by weight) needs to be eligible (i.e. is UK/EU produced and not originating from another ineligible third country).  This relaxation is important and helpful to traders as it goes some way to providing an implementation period to permit companies to adapt to the changed trading environment. 
    • Sanitary and Phytosanitary (SPS) checks: will become applicable immediately on UK exports to the EU.  This means that lamb exports to the EU will be subject to 15% physical checks whilst there will be a 30% physical check rate for dairy products for human consumption.  In the SPS area generally, it is arguable that the UK-EU FTA is lacking in ambition.  There will be a Specialised Committee set-up for SPS within the Governance structure of the agreement, which might bring some further easements in the future.  However, for now, the treatment of UK exports to the EU will not be much better than that of a standard third country, and certainly significantly worse than the level of access that New Zealand enjoys on its exports to the EU.
  • Fisheries: the quotas for EU fishing vessels’ access to UK waters will be reduced by 25% over a five and a half year transition period.  This quota will be repatriated to UK flagged vessels over this same period. Thereafter, annual negotiations would take place on the level of access that EU fishing vessels would have to British waters.  This arrangement has met with criticism from the UK fishing industry which was anticipating a greater Brexit dividend. 
  • LPF: the EU pushed very hard on this issue which relates to upholding existing standards on the environment and labour laws so that the UK for instance cannot gain a competitive advantage in the future by undercutting EU rules.  The agreement includes mechanisms to enable one side to retaliate against the other if it is found that there is a breach of the LPF provisions.  Theoretically, this could mean that retaliatory tariffs could be introduced on agri-food trade in the event of such a breach, even if this violation occurs in another sector. 
  • State Aid: importantly, from a UK perspective, Britain can have its own independent system of subsidy control and neither party is bound to follow the rules of the other.  However, LPF provisions apply to prevent one side from gaining a significant competitive advantage over the other.
  • Ratification: is expected to take place swiftly in the UK, with Parliament being recalled on 30th December to vote on the deal.  As Labour has announced its intention to vote for the deal, its passing should be a formality in the UK.  In the EU27, the process is somewhat more complicated.  Given the limited time available, the EU has decided to “provisionally apply” the deal from January.  However, it will be scrutinised further by both the European Parliament and at Member State level. This process is set to be undertaken during January and February.

Implications for UK Agri-Food

The announcement of a UK-EU trade deal was greeted with a sense of relief by the UK food and farming industry as it provides much greater certainty for the sector.  The major exception to this is the seed potatoes sector as exports from the UK to the EU will become prohibited.  This is a significant loss as the EU is a major export market for the British seed potatoes’ sector, particularly Scotland, which has amongst the highest product standards for seed potatoes globally.

Overall, the anticipated impacts on UK agricultural output and trade are expected to be limited.  Below are the findings of a recent study by The Andersons Centre undertaken on behalf of the Scottish Government using the Agmemod partial equilibrium economic model.  For the sectors analysed (wheat, barley, beef, sheep and liquid milk (dairying)), the impacts of a UK-EU FTA are relatively small, particularly compared with No Deal.  The changes under the FTA scenario are primarily due to the imposition of NTM costs which generally range from 0..1% (wheat, barley) up to 3% (beef) under an FTA scenario.  These findings are corroborated by recent comments from the Tesco Chairman (John Allan) who believes that the Brexit Deal will not lead to any significant effects on consumer prices.

Agmemod Projections of Brexit Impacts on Selected Scottish Farm Sectors (£m)

Sources: The Andersons Centre, Wageningen University and Research (WUR) and the Scottish Government

Other key issues to watch out for include;

  • Exchange rates: these have a major bearing on the competitiveness of UK agri-food produce on international markets.  On the announcement of the UK-EU FTA, Sterling rose by 0.5% against the Dollar.  Generally speaking, a stronger Sterling is bad for UK farming as the prices of British agri-food produce become more expensive on global markets, whilst imports become cheaper.  In June 2016, following the referendum, Sterling weakened by 15-20% against the Euro and has not recovered since.  Where Sterling goes from here will have a major bearing on the UK agri-food sector’s financial performance.
  • Other FTAs: the UK has already made significant progress in negotiations with Australia and New Zealand, as well as the US to a lesser extent.  Some anticipate deals to be struck with Australia and New Zealand in 2021.  Given the extent to which these countries trade in beef, lamb and dairy products, they could exert significant competitive pressure on British producers if they get better access to the UK market.
  • Allocation of EU28 TRQs: now that a UK-EU FTA has been reached, the likes of New Zealand are already highlighting issues with the proposed allocation of EU28 TRQs by the UK and the EU27, who essentially suggested in December 2018 to split the existing TRQs on the basis of historic trade.  New Zealand amongst others objected to this at the time and are now bringing this topic back to the agenda. T his will need to be addressed at the WTO level in the coming months.

Given the extremely limited timeframe during which the UK-EU FTA was agreed, it is inevitable that a whole myriad of other issues will emerge once experts have had time to parse through the 2,000 pages of legal text and annexes.  Overall, the trade deal is historic and marks the beginning of a new era in the UK’s relationship with Europe.  However, as with trading relationships between other close neighbours (e.g. the US and Canada), the UK’s trading relationship with the EU is going to evolve and this will necessitate further negotiations in the the future, both on the implementation and governance of the existing agreement, but potentially on developing new accords.  In this respect, we’ve not reached the end of the road on Brexit.  Whilst the topic might (mercifully) move down the agenda as we move forward, it will not disappear from the news.

Further analysis will be provided in the coming days and weeks on this issue.  On 11th February, The Andersons Centre will also be running a webinar to examine in-detail the implications of Brexit. Further information is available via: https://theandersonscentre.co.uk/webinars-2/

Further information on the UK-EU Trade and Cooperation Agreement, including the legal text, is available via: https://www.gov.uk/government/publications/agreements-reached-between-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-european-union

UK Global Tariff Amendments

The Department for International Trade (DIT) has announced technical changes to the UK Global Tariff (UKGT) for 27 products, mostly in the cereals and arable sector.  These changes are primarily being made to ensure consistency within the UKGT schedule and to take account of new information which has come to light since the original UKGT was published in May. Selected changes include;

  • Barley flour: £143 per tonne tariff to apply to ensure product consistency, the previous UKGT was set at 0%. 
  • Maize flour: set at £82 per t, up from the previous UKGT of 0%.
  • Oat flour: £137 per t, previous UKGT rate was again 0%.
  • Maize pellets: £144 per t, again up from 0%.
  • Barley pellets: £143 per t, also up from 0%.
  • Wheat pellets: £146 per t, previous UKGT rate was 0%.
  • Sugar beet seed: tariff now set at 0%, previous UKGT rate was 8%.

Most of these changes mean that the new UKGT will be more closely aligned to the EU Common External Tariff (CET).  The main exception being sugar beet seeds which has seen its tariff liberalised.  There are several other changes relating to products such as basmati rice, olive oil and non-alcoholic beer.  Further detail is available via: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/944733/UKGT-Amends-tariff-change-announcement.pdf

Brexit Update

Last month, we reported that time was almost up in the Brexit negotiations and last weekend, it looked as if a make-or-break decision on the future of the talks would be made on 12th December.  As is nearly always the case with EU negotiations, and Brexit especially, the talking has continued beyond the latest deadline.  A few days’ back it was suggested that about 97% of the draft legal text had been agreed.  More recently, there have been signs of progress on addressing two of the three outstanding issues – the Level Playing Field (LPF) and Governance.  However, Fisheries remains unresolved.

On the LPF and Governance, the outline of the Deal is taking shape.  EU Commission President Ursula von der Leyen claimed that the architecture of the LPF is based on two pillars: State Aid and standards.  On State Aid, it appears that the common principles around robust domestic governance, and the right to autonomously remedy situations of unfair competition / distortions in trade have now been established.  In terms of standards, the EU Commission President also claimed that a mechanism of non-regression on labour, social and environmental standards has been agreed although there some issues remain around future-proofing such arrangements.

Sources close to the talks suggest that the negotiators’ energies are currently focused on resolving the remaining LPF/Governance impasses.  Thereafter, the final hard bargaining will take place on fish.  This looks set to come down to a pure numbers game in terms of quota access which both sides are able to live with.  The EU appears to be linking access to fisheries with access to its Single Market which gives an indication of how hard it intends to bargain.  There are also rumours that a five-year review mechanism will be included in the trade deal which will take stock of how the fisheries quota share and access arrangements are working on the one hand and whether the playing field has remained level.  A formal review of how any agreement is functioning would seem prudent.

Overall, it appears that the talks are inching towards a Deal, but hurdles remain which could still scupper the negotiations.  The European Parliament is unhappy that it will not have the necessary time to scrutinise the agreement before voting on it.  Although the EU would technically be able to ‘provisionally apply’ the Deal before MEPs get to vote, this is not desirable.  All EU institutions would much prefer an EU Parliamentary vote on 28th December.  To have any chance of meeting this timeline, an agreed text would be needed a few days in advance of Christmas.

If a Deal is not agreed until after Christmas, a short No Deal (interregnum) period in January becomes a distinct possibility.  Some claim that even if both sides agree to provisionally apply such a Deal, a range of procedural measures would still be required.  However, in such circumstances, one would surely think that some sort of brief standstill period could be agreed whilst the required measures are put in place?

From an agri-food perspective, there is a big element of wait-and-see in terms of what Deal might be agreed.  However, irrespective of a Deal/No Deal, major changes are afoot.  Whilst arrangements such as those recently agreed under the NI Protocol (see accompanying article), might provide for a limited grace period, preparations for friction on UK-EU trade in early 2021 need to continue with urgency.  Customs agents need to be booked.  There are reports that some do not want to become involved in agri-food because it is too complicated given all of the additional Sanitary and Phytosanitary regulations which can result in difficulties in getting consignments through Customs.  For agri-food companies trading with the EU, training and upskilling in Customs and other regulatory formalities will also be necessary.  This is especially the case for exporters to the EU, as it appears that regulations will apply to a greater extent from January in comparison with importing from the EU into the UK.

Northern Ireland Protocol Agreement

On 7th December the UK and EU announced that they agreed ‘in principle’ how the Northern Ireland (NI) Protocol would be implemented.  This is a significant achievement given the problems in other UK/EU talks, and has been widely welcomed, especially by business groups.  However, there is unease in some quarters on the how the new procedures will work in practice.

The arrangements will enter into force irrespective of whether the UK and the EU reach an agreement on their future trading relationship, although if such an agreement were reached, it would make the operation of the NI Protocol much easier.  Key aspects include;

  • No checks on goods being transported from NI to GB: this issue caused problems throughout 2020 as the EU was insisting that Exit (Export) Summary Declarations were required for Safety and Security purposes.  This requirement has been obviated through the use of commercial data (e.g. from shipping manifests), which is already collected, to meet safety and security obligations. This is a pragmatic solution to the issue.
  • Trusted Trader scheme: is to be introduced for supermarkets and other suppliers.  This ‘UK Trader Scheme’ is primarily directed at businesses whose products will be sold to NI consumers and who can prove that such products will not leak into the Republic of Ireland (EU Single Market) and thus be potentially liable to tariffs (under a No Deal).  Traders who believe that their products being sold to NI are not ‘at risk’ of entering the EU Single Market can register for authorisation via’ https://www.gov.uk/guidance/apply-for-authorisation-for-the-uk-trader-scheme-if-you-bring-goods-into-northern-ireland-from-1-january-2021
  • Reimbursement scheme: for traders who are not part of the UK Trader Scheme or who cannot guarantee that their goods will remain in the UK customs territory (including NI) can join this scheme to have any tariffs paid upon entry into NI reimbursed if such goods are eligible to be traded freely in the UK.  This will require proof that such goods have remained in the UK customs territory. 
  • Grace periods for traders to adjust to new arrangements: these vary from 3 months to 12 months and are predicated on UK regulatory standards remaining aligned with the EU’s for the periods in question. A range of issues are covered including;
    • Export Health Certification: will not be required on retail shipments of plant and animal products for three months, provided the organisations involved register as a Trusted Trader.
    • Requirements for some meat products to be frozen: on trade between GB and NI for products such as mince and sausages it will not be mandatory for supermarkets (and trusted traders) for the first six-months. Thereafter, fresh/chilled products will have to be sourced locally from NI or from the EU (particularly the Republic of Ireland).  However, this requirement could be obviated as part of a wider trade deal between the UK and the EU.
    • Veterinary products: will have a 12-month adjustment period to ensure that there will not be a shortage of critical supplies.
  • EU presence in NI: although the EU will not formally have an office in NI, which again caused controversy, its officials will be present to oversee the implementation of the Protocol and the EU will have access to relevant databases to monitor trade flows.
  • State Aid: GB-based firms will not be subject to the EU’s State Aid rules where there is no ‘genuine and direct link’ to Northern Ireland and no foreseeable impact on NI-EU trade.  Further detail will be needed as to what this means in practice but the clarification addresses a key UK concern over its sovereignty in terms of State Aid regulation.
  • Agricultural Support: will continue to be exempted from State Aid, subject to ceilings agreed under the Protocol. The agreement in principle provides that approximately “£380 million of agricultural support” can be provided to NI farming and be exempt from State Aid rules.  Up to £25 million of support not used in one year can be rolled forward to the next year and an additional £7 million will be made available for crisis support when required. Current spending on agricultural support (including rural development elements) in NI is around £330 million annually.  This arrangement provides further flexibility for NI to support its agricultural industry when it sets its own agricultural policy independently of the EU CAP. 

Whilst these temporary arrangements will ease the flow of goods from GB to NI initially, longer-term, there will be a significant increase in bureaucracy as Export Health Certificates (EHC) will be required for animal and plant products and Customs (import) declarations will be required for all goods.  Furthermore, products will also be subject to a wide range of regulatory checks.  Documentary and identity checks will be required for all plant and animal products subject to Sanitary and Phytosanitary (SPS) regulations.  A significant proportion of these products (15% for red meat; 30% for dairy and poultry products for human consumption) will need to be physically checked at a Border Control Post.  Added bureaucracy will lead to increased food costs in Northern Ireland.  However, it must also be acknowledged that the UK plans to introduce a Movement Assistance Scheme to help traders with ‘reasonable costs’ incurred on EHC and official controls on goods moving from GB to NI.  This is in addition to the Trader Support Service launched in August to assist with Customs-related issues.

At least, this grace period, will help to put the necessary infrastructure and systems in place to manage the long-term implementation of the Protocol.  Such an application (adjustment/grace) period on any UK-EU trade deal is also needed to give traders and regulatory authorities the time to implement the new arrangements.  Further detail on the UK Government’s Command Paper on the NI Protocol and supplementary information is available via: https://www.gov.uk/government/publications/the-northern-ireland-protocol

UK Trade Continuity Agreements

Good progress continues to be made on the UK finalising continuity agreements to replicate the trade deals that it was party to as an EU Member State.  To date, such deals have been put in place covering 53 countries and, importantly, on 21st November, a rollover agreement was reached with Canada.

This agreement essentially replicates the provisions of the EU-Canada ‘CETA’ agreement, including specific tariff rate quotas (TRQs) for various agri-food commodities (e.g. imports of Canadian beef).  However, detail is awaited on the apportionment of these TRQs between the EU27 and the UK as the legal text has not been published yet.  One slight negative from the UK perspective is that it loses access to CETA’s cheese TRQ (14,750 tonnes for the EU (incl. UK)).  However, it can continue to compete for the WTO TRQ (14,272 tonnes) that the EU has access to when exporting to Canada, for another three years.

It is also anticipated that this continuity agreement will form a prelude to a more bespoke UK-Canada deal which will begin to be negotiated in 2021.  Although the deal only enables the UK to maintain the status quo with Canada, it is seen as a success for the UK, particularly as there were concerns earlier in the year that a rollover might not be concluded.  Getting these rollover agreements has been a major effort for UK trade negotiators.  Some agreements remain outstanding, most notably with Turkey, Egypt and Mexico, but discussions with these countries and 11 others are ongoing.

Brexit Update

As has seemed to be the case for several months now, the Brexit negotiations are at a crucial stage and, although the EU side believes that 95% of the text for the trade deal has been agreed, three stubborn sticking points remain.  These are the so-called level playing field provisions, State Aid and fisheries.  Given that several deadlines have now passed and the Transition Period will end on 31st December, time is now the biggest threat.

Addressing The Remaining Issues

Of the three outstanding issues, the level playing field is deemed to be the most problematic.  On one side, the EU is adamant that the integrity of its Single Market and its competitive position must be protected.  It wants an agreed set of baseline environmental, climate change and labour protection standards to be agreed between the UK and the EU, which would evolve over time.  The EU is pushing for the right to swift retaliatory action if the UK seeks to diverge from these.  The UK, on the other hand, is resisting such moves as it sees its sovereign right to diverge as one of the key gains from Brexit.  The UK also wants as much flexibility as possible on these issues to have greater leverage in agreeing trade deals with other countries from 2021.  This is particularly the case for agri-food.  Food standards were once closely linked to the level playing field requirements, but they tend not to be mentioned recently – a tacit acknowledgement by the EU that the UK could diverge in this area in future.  However, that will come at a price in terms of Single Market access for UK agri-food producers.

Well-connected sources believe that if the level playing field issues can be overcome, that will be the key to unblocking the impasse.  This because progress has been made on State Aid recently and areas such as aviation, energy, road haulage and rules of origin have not been finalised only becuase they are linked to the level playing field issue.  That would leave fisheries, which is likely to come down to a last minute trade-off at a political level involving the Prime Minister, the President of the EU Commission and EU Member State leaders, most notably Emmanuel Macron.

Time Constraints

Although there are signs that both sides are inching towards a deal, it increasingly looks like whatever will be agreed between the UK and the EU will be a bare-bones agreement.  As previous articles have noted, this should mean zero-tariff and zero-quota free trade in agri-food goods but non-tariff measures (NTMs) will be significant.  Taking beef and sheep meat for instance, this would mean physical check rates of 15% at border control posts. To date, the default check rates for such products has been 20% (i.e. for countries trading with the EU on a Most-Favoured Nation (MFN) basis).

On 24th November, the French Customs Authorities tested their customs and Border Control Post facilities in Calais and it caused severe queues in Kent.  This indicates that in the first weeks and months of 2021, there will be significant delays at the border.  Concerningly, the UK authorities have not yet begun testing their arrangements, because in many cases the infrastructure and systems are not in place yet!  The fact that the French are testing indicates that they are close to being ready.  There is unease that from January the delays on the UK side will be even more substantial.  All of this gives rise to the prospect of significant value deterioration on UK agri-food exports to the EU as time delays erode shelf-life.  It could also mean the loss of high-value export sales, particularly in the retailing sector.

On the imports’ side, the UK is phasing in the introduction of its Border Controls over six months in 2021.  This should help imports of highly perishable agri-food products (with the exception of some high-risk categories) from the EU.  However, added friction is going to become a fact of life from 2021 and supply-chains are going to have to adapt sooner or later.

Time will also be an issue in terms of ratifying any trade deal, particularly on the EU side as it normally requires a vote at the European Parliament.  The last session of the European Parliament is currently scheduled for 14th December, however, there have been suggestions that MEPs have been advised to keep the 28th December available. Another option being mooted by the EU is to “provisionally apply” any UK-EU trade deal from 1st January with the ratification process at EU Parliament and potentially at Member State level (if the deal includes areas solely within the remit of each Member State).  Either way, the EU Council scheduled for 10th-11th December will be crucial and it is thought that a deal will need to have been agreed by that point and the process of translating the deal into legal text and other EU languages will need to be well underway.

If a trade agreement can be reached between the UK and the EU, any initial agreement can be improved over time as is the case with trade deals elsewhere.  That said, the prospect of a No Trade Deal remains significant.  If a Deal is reached, there are many technical issues, including transit arrangements in the UK and Ireland, which have not had any time devoted to them, and will need to be ironed out from January.  Although it is inevitable that elements of a phasing-in period will need to be implemented by both sides (e.g. Belgian customs authorities have acknowledged that some of its customs requirements will be relaxed initially), businesses need to brace themselves for significant change from January.