As a former European Commission official, Jacqueline Minor is no stranger to the complex and sometimes convoluted processes that have historically underpinned much of the UK’s relationship with the EU. But speaking to her via Zoom in mid-November, I get the impression that even this most adept connoisseur of political bureaucracy is somewhat exasperated at the pace of progress in the EU Exit negotiations.
“We have now left the European Union but because of the transition period, we haven’t yet really experienced what that means,” she says. “We don’t yet know what shape the future relationship, if any, is going to take.”
Having previously served as EC Director for Consumer Policy between 2008 and 2013, Minor was appointed European Advisor to CTSI’s Brexit Think Tank in 2017 – a role to which she has been able to bring not just a wealth of expertise, but a fresh perspective on trading standards. “The Brexit Think Tank has done a remarkable job,” she says. “I’m an outsider to the trading standards family, and the Lead Officers on the specific sectors have really put together an enormous amount of information and advice. And they’ve done so in a continuing climate of uncertainty.”
Uncertainty is, somewhat ironically, the only thing there can be any certainty about when it comes to Brexit. As the clock ticks down to the end of the transition period on December 31, 2020, significant and seemingly insurmountable questions remain about the UK’s future outside the EU, on a range of issues that could drastically affect consumer protection and the way in which it is enforced for years to come.
“The doubt which has subsisted since the referendum really continues,” says Minor. “We know certain things; we know that, for example, we’re not going to be plugged into any of the alert systems for dangerous consumer products or food, or into the ECC Network for cross-border consumer complaints.
“But we don’t know to what extent additional checks will be needed at the borders. We don’t know to what extent food products will be subject to additional inspections. The UK has sort of lifted and shifted all of the EU legislation across to domestic legislation but we don’t know to what extent that will change in the coming years. And we don’t know whether the rules on consumer rights in relation to online purchases and so on will change, which will have an impact on the work of trading standards officers.”
All this uncertainty presents a further risk for UK consumers, Minor believes. “Rogue traders are always the quickest to spot an opportunity in any market,” she says. “Confusion and uncertainty present an opportunity to scammers and fraudsters. We’ve seen that with COVID-19 – people have used it as a cover for phishing, identity fraud and all sorts of things. And since there will be the same kind of confusion around Brexit, you can imagine that people will be approaching small businesses to say ‘You have to sign up to this, or you failed to register for this, or if you don’t immediately give us your bank details you’ll be fined’.”
The work of trading standards – which continues against a backdrop of the COVID-19 crisis and budget cuts, not to mention Brexit – largely involves communicating reliable information to businesses to help them stay on the right side of the law. So to what extent is the lack of certainty around the UK’s post-Brexit future a problem in and of itself when it comes to helping businesses to prepare for what comes next?
“Recently [staunchly pro-Brexit Minister for the Cabinet Office] Michael Gove was somewhat castigating businesses before a Parliamentary committee for not being properly prepared,” says Minor. “When you see reporting in the press about Brexit preparations, it often focuses on export businesses selling goods and services into the European market and the need for them to adapt.
“What you see less of is businesses who think they won’t be affected because they don’t trade in the European market – some of whom, for example, may be buying goods from a European manufacturer, producer or supplier, and will previously not have had the same obligations in relation to safety that will come into effect when they turn from distributor to importer. Suddenly, they’ll have a whole lot of obligations in terms of making sure that the product is safe which they didn’t previously have. I’m not convinced that most businesses will know that’s changed, nor will they necessarily know how to address it.”
This lack of awareness extends to consumers as well. “It remains the case that consumers don’t necessarily know where they’re buying from,” says Minor. “If you buy from Amazon, for example, it usually will be executed by Amazon UK. But it’s possible, depending on what you buy, that it’s executed by Amazon France, or Amazon Germany, and so the law regulating the contract may not be UK law – it might be Luxembourg law, for example.
“Whereas before the end of the transition period, as a consumer, there were certain rights in relation to bringing cross-border complaints, those will disappear. There may be all sorts of implications in terms of customs declarations, and maybe even customs duties to pay.
“I’m not sure that either consumers or businesses have really woken up to all of the implications of this.”
And what about the Government – have they fully woken up to the implications themselves? Minor strikes a conciliatory tone. “To be fair to the Government, obviously they’ve been blown sideways by COVID-19. A lot of administrative bandwidth and resources have been absorbed by fighting the pandemic, which might have been deployed in terms of better preparedness for Brexit.
“To some extent I sympathise,” she adds. “On the one hand, they are negotiating for what they hope will free them from making some of the investments that they would need to make if there were no agreement. If they do go ahead and build extra lorry parks, for example, on the assumption there won’t be an agreement, they will maybe spend a lot of money that they won’t need to have spent. But if they don’t spend the money they could find that come January there’s chaos; it’s a difficult decision.”
Loss of intelligence
One of the few things that is clear from the withdrawal negotiations is that UK enforcers will lose access to EU-based intelligence systems. “We will certainly lose access to [Rapid Exchange of Information System for non-food products] RAPEX and [Rapid Alert System for Food and Feed] RASFF,” Minor says. “There’s a public part of these databases, so we’ll still be able to see that. But it’s more limited information, and it’s available later than it is to member states.
“It can be crucial that you get timely information. If you think of the horse meat scandal, you need to know about a problem in a timely fashion to be able to track it through the production chain. In the past, UK enforcers have relied quite heavily on their continental colleagues to pick up some of these things before they get into warehouses and onto supermarket and shop shelves.”
But there are also implications beyond just day-to-day alerts on product safety threats, she believes. “The other thing that we lose, which is intangible, is the shared exchange of knowledge. It’s not necessarily what appears in the database, the number of alerts that stack up, but the committees that work around those alert systems, where people can informally discuss emerging problems.
“If you can see some kind of new toy phenomenon or particular form of product which is an area of potential concern, you can share enforcement strategies, which is something that goes for both food and non-food products.”
One of the most talked-about aspects of the UK’s post-Brexit future is the possibility of new trade relationships with international partners, particularly the US. But will the arrival of the new Biden administration have any significant implications for negotiations? Minor thinks not and believes risks remain, particularly around food imports.
“Even before the US election result
was announced, the UK Department of Trade had entered into a commitment
that they wouldn’t change food standards,” she says. “It is possible to admit chlorinated chicken, for example, without changing production standards in the UK. You could argue that we can keep our production standards, but allow in food produced to different, possibly lower standards. That would be economically very damaging to UK poultry farmers, and I think to consumer confidence.
“In terms of the Biden victory, I don’t think it makes any difference whatsoever to the way in which the US will argue the agricultural aspects of any future trade agreement. I can remember being in Washington in 2009 or 2010 and going to a dinner with the head of the Federal Trade Commission. He spent the entire dinner lecturing the Europeans on their protectionist standards and basically telling us that there would be no [Transatlantic Trade and Investment Partnership] agreement unless we remove them. Those are the standards which keep out chlorinated chicken, ban hormone treated beef and restrict GMOs.
“I just can’t see that the Americans are going to drop their demands. I don’t think it’s possible to reach an agreement without making concessions to the US in those areas.”
Shock to the system
So at this late stage in the Brexit process, after more than four years of recriminations, political turmoil and confusion – what comes next?
“It won’t surprise you to know that I think it was an unfortunate outcome from the referendum,” she says, somewhat drily. “Having accepted that the course would be withdrawal, there are different approaches to a future relationship.
“I think it will come as a shock to the UK when it actually happens. I think a lot of people think, ‘Oh, it’s happened and nothing’s changed. So it’s fine.’ But it is going to really make a difference at the end of this year.
“I worry about the economic shock, partly due to direct consequences, but also the indirect consequences,” she adds. “If, for example, farmers found themselves exporting lamb with a 38% tariff on it, they would lose their market.
I live in the countryside and I hear
what farmers say all the time. Their margins are very tight; many are barely profitable or sustainable. So what do they do? The fear is that they could cut their costs in terms of animal welfare standards, hygiene standards, food production standards.
“Likewise, for non-food products, consumers could suddenly find that they don’t have the same choice, and prices rise. And again, importers and distributors might be tempted to cut corners in terms of safety or quality.”
Minor’s final point is sobering, and puts into perspective the scale of the challenge that consumer protection in
the UK faces in the years ahead. “Another real concern is that we’ve already seen
the trading standards arm of local authorities suffer a severe reduction in resources as a result of a general reduction in local government funding. I do worry that both as a result of COVID and potentially because of the economic impacts that may come with Brexit, that’s a trend that is not going to be reversed, and might be exacerbated.
“You could have central government producing wonderful new legislation or maintaining all of our current rules and standards to protect consumers – but if enforcement has fallen off the edge of a cliff, then so what?”