Thread by @hhesterm

As the wonderful “WTO option” is hyped again, let me just focus on one particular issue that has bugged Brexit again and again. “But our laws are perfectly aligned, so we won’t have a problem”

This claim comes in different forms. I want to focus on it in the format of “there accordingly won’t be customs problems, the EU will/has to leave our products in as before”

In the most stark, logical form it says this: UK products are good to enter the EU without impediment five minutes before Brexit takes place, nothing will have changed in UK laws, health checks, etc. 10 minutes later. Would the EU cruelly impose controls etc.?

What is the EU’s position? The Brexit preparedeness notices take a legal approach: five minutes before Brexit: EU Member State. Five minutes after: no longer.

For live animals this means: being listed as a third country, the consignment has to go through an approved EU border inspection post, health certificate, documentary check. For details read ec.europa.eu/info/sites/inf…

Does this violate WTO law? Let’s tackle this in two steps: a) the procedure in general and b) imposing them on the UK post-Brexit.

As to a: start with your intuition first: this is the procedure the UK and all other EU Member States are using. Have been using. If it is WTO-illegal, WTO law does not seem to have helped very much.

Quick look at WTO law: Art. 2.1 of the SPS Agreement as a matter of principle allows SPS measures necessary to protect human, animal or plant life or health.

These measures have to comply with a couple of things - based on science, no arbitrary discrimination etc. See Art. 2 SPS Agreement.

So in general they are OK. What about imposing them on the UK post-Brexit. Isn’t that an arbitrary discrimination against a country that has the same conditions as the EU?

Let’s start with intuition again. Two hypos: A consignment arrives at the UK border from Ruritania (nod to @GAVClaw). The exporter claims that Ruritania follows UK law. Hence there should not be any checks. Anything else would be discrimination!

The customs officer declines. He checks, and every step of the way the driver yells “but this has been done in Ruritania. Our laws are the same as yours”.

How does the customs officer know what to do? What will he do? She’ll look at his book. It says Ruritania is a different country. She’ll follow the procedure.

But more seriously (and back to Brexit): what if the House of Commons passes legislation on animal safety now that will go into force the moment of Brexit and that changes standards and requirements?

What if a court interprets the applicable law differently from the Court of Justice of the EU? The answer is: customs offers don’t have to read every law and judgment. For them, the moment of Brexit the UK is a third country. That’s what we wanted. That’s what we get.

Now back to WTO law: is it an arbitrary discrimination between Members where similar or identical conditions prevail for the EU to treat the UK as a third state post Brexit, even though it follows EU law?

The question to ask here is: does the UK follow EU law? The moment of Brexit, the UK is not bound by EU law, no direct application, no supremacy, no enforcement - no Commission, no CJEU.

The conditions are not the same, they are not identical. The UK might voluntarily apply rules that look identical. But they are not and UK courts are free to interpret them differently, the legislator can diverge.

So there’s no arbitrary discrimination.

Now will this create miles and miles of traffic jam in Dover? To be honest: I have not looked at this question in detail, but just a couple of indicators for my dear readers to think about this in a structured way.

This - clearly - depends on details: how many trucks are stopped. For how long. How and where are they stopped? What are the facilities like? Can they be pulled over? What checks are conducted? How long do they take?

The argument “only a small percentage is controlled in detail” can only disprove the traffic jams, if the original studies supposed that every truck would be controlled in detail.

This article contains the claim that a two-minute delay would result in a 17-mile queue. It comes from port chiefs, so not to be dismissed out of hand. But here two: I am not even sure what exactly “two-minute delay” means. theguardian.com/politics/2018/…