Brit Farm is an organic family farm. Family members hold all the shares in Brit Farm Ltd (BFL) which holds the farm as a secure tenancy from EuroCollective Ltd (EC). EC is jointly owned by a collective of 28 organic farms, all of which are tenants with EC as the freeholder.
Like all the farms, BFL has the right to buy the freehold and leave the EC collective.
Under its leases, EC imposes various constraints on the operation of the farms, in particular applying strict rules to ensure that produce is organic.
All EC farmers are allowed to use EC tracks and roads free of charge. Other farms are charged €X a movement for using EC roads.
Brit Farm is almost surrounded by other farms in EC, though on one side it has access to the sea, where there is a small jetty. Most of what it needs and wants to sell comes in and out over EC roads.
Bad times fall on Brit Farm. Many in the Brit family argue that if they were to buy the freehold they could escape the lease conditions and run the farm more profitably. Some promise that the farm will remain organic. Others want to become non-organic and cut costs.
After a bitter argument, the family decides by a bare majority to buy the freehold.
BFL buys the freehold. A debate starts about how the farm is now to be operated. The majority who wanted to buy the freehold are divided as to whether they want to remain organic and no decision has yet been taken.
For 11 months after the sale, EC allowed BFL to use its roads for free.
EC is though a bit concerned by Brit family members discussing relaxing/removing organic standards and possibly introducing pesticides and GM crops that EC doesn’t allow on its farms. EC is concerned that that could affect the organic status of its own farms.
EC says that BFL can carry on using its roads for free. But, EC says, it wants the agreement to say that EC will be able to start charging a toll on some of BFL’s trucks if BFL starts using GMOs or banned pesticides.
EC also wants to be able to start charging a toll if organic standards change and under those new standards, unless BFL changes too, EC’s organic status could be threatened by spill-over effects.
BFL complains that Ottawa Farm, located on the other side of a wide river, is allowed by EC to use its roads for a minimal price and without having to agree any terms like those.
EC points out that Ottawa Farms doesn’t send many trucks down EC roads and, because it’s on the other side of a river, its use of pesticides and GMOs doesn’t pose any risk to EC’s organic status.
BFL has to decide whether to accept those terms. Some in the family say “yes”: if full tolls have to be paid Brit Farm will be seriously out of pocket: it may even go bankrupt.
And the jetty - the only route avoiding EC tolls - can’t take much traffic and will be expensive and slow to turn into a harbour able to take large traffic volumes.
They also point out that if Brit Farm does decide to introduce GMOs later, or falls behind developing organic standards, EC might decide not to raise tolls and even if it does the tolls will still be much less than full rate.
Others in the family say “no”: they cry “we own Brit Farm! It isn’t EFL’s right to tell us how to run it!”
Those who dislike being organic also fear that if this agreement is reached, Brit Farm will never abandon organic farming, but will just do what is needed to avoid tolls and follow EFL.
Which way would you vote, if you were in the family?
To what extent is “But we voted to leave and we now own the freehold of Brit Farm!” a helpful observation, in deciding what to do? And is it helpful to complain that EFL isn’t being “fair”?
To what extent is your answer affected by your view of whether Brit Farm should remain organic?
There are dangers in all allegories. But this one catches, I think reasonably fairly, the heart of the issue.
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About 100 years ago, Attorneys General frequently appeared in big criminal trials - and was obliged to prosecute all poisoning cases personally. He (always he, of course) would also represent the government in important civil cases.
Very large numbers of international treaties require the UK to make, or not make, law. The UN Treaty requires us to impose sanctions. The Antarctic Treaty requires us to prohibit unlicensed operators organising tours to Antarctica. GATT restricts our ability to set tariffs.
@SBarrettBar appears to think that such provisions do not infringe his definition of “sovereignty”, but he fails to explain why not.
The first concealed rational answer is that, in a negotiation, you may want to try to force your counterparty to offer better terms by saying that you will walk if you don’t get them.
And you may say that even if, faced with the choice between currently offered terms and walking away, you’d be mad to walk away.
It doesn’t use the useless word “abusive”. But my point that “the EU in the Joint Committee” doesn’t decide what Article 10 means stands: that is for the Court of Justice, as provided for by Article 12.
As to reference to “hypothetical, presumed, or without a genuine and direct link”: it adds nothing. (Would any court ever hold that a hypothetical, presumed, or non-genuine effect was enough?).
On subsidy control, it’s critical to remember that the EU has accepted that the UK can apply its own subsidy regime not “EU State aid rules”. Since the Tories promised such a regime during the GE, that should be acceptable.
This is a soluble problem. A clause or side letter could record that the EU has no objection to the UK granting aid to compensate businesses for Covid losses or to restart the economy.
The devil is in the detail. But ultimately the UK choice is whether (a) to accept a deal the benefits of which cld be withdrawn if the EU (after arbitration) later decides that divergence has in fact become too great for those benefits to be in its interests any more; or
(b) to refuse a deal, and those benefits, now (and before we have decided what if any divergence we actually want.
It’s a bit like someone who balks at renting a nice house they rather like because there’s a term in the lease that gives the landlord a right reasonably to refuse them having pets, even if they have no pets and aren’t sure whether they ever will.