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LONDON — Boris Johnson took back control of Britain's borders through Brexit — then outsourced their policing to the EU.
The British government last month announced it would ditch planned animal and plant health checks on imports from the bloc following multiple postponements.
Instead it intends to introduce a new border model for imports from right across the world that will make checks digital and decrease the hassle for traders.
The government hopes to bring that new model into force before the end of 2023, but it is unclear what it will look like. In the meantime, the U.K. will take it on trust that goods coming in from the EU meet current British standards.
There’s a good chance that will be the case since most products made in the EU must conform to the bloc's rules (although some don't have to, depending on the rules in their destination export markets). The border of the entire EU customs union already includes rigorous checks on items coming from outside, and so most things making their way to Britain via Europe will have passed these checks before they arrive.
“Obviously there are caveats, but the U.K. is effectively saying it trusts that products entering from the EU conform to U.K. requirements,” said Sam Lowe, director of trade at Flint Global. “We’re outsourcing a large proportion of our import health regime to the EU.”
Until the new British border model comes into force, Britain risks the ire of non-EU nations as they will have to jump through more hoops to export to the U.K. than those in the bloc do.
That amounts to discrimination under World Trade Organization rules, according to Nic Lockhart, a trade lawyer based in Geneva working for Sidley Austin.
“When you decide to abandon physical inspections for goods from one source — here the EU — and you don't do the same thing for goods from another source, then you're effectively advantaging goods from the EU because they're subject to less stringent requirements,” he explained.
That could mean a rap on the knuckles for the U.K. from the WTO if another nation chooses to challenge Britain at the global trade body. However, with the organization struggling to function, British ministers have calculated that it’s worth the risk.
Case for the defense
If it did end up in arbitration, the U.K. side reckons it can defend itself with the argument that the measures are short term while Britain adjusts to its post-Brexit status quo, despite signing up to an obligation which came into force at the start of 2020 that the checks must be implemented.
“We’re still dealing with Brexit and the pandemic,” said one U.K. official. “It’s not a permanent advantage for EU businesses. We want to bring down the red tape for the rest of the world in the long run too.”
One minister argued that the 2023 deadline was soon enough that the risk of a challenge would be mitigated. “We are confident we are WTO compliant in doing this,” they said.
But Lockhart said the timing defense was not a legal one. “The obligation applies today, and you have to comply with it today,” he argued, although he agreed the promise of equal treatment soon could change the political calculus for other nations.
Shanker Singham, a pro-Brexit trade expert, also said the current situation was “problematic” from a discrimination perspective but that other nations would not be bothered as long as the time period remains short. “If we go five years with this you’ll have a different reaction,” he said.
The U.K. side also argues the legal risk is worth it because bringing in new checks could have led to bare shelves in the supermarkets, in particular when the war in Ukraine is causing jitters about food shortages. “The WTO risk is low as it’s a temporary measure,” said another British official. “It’s a live risk, but the bigger risk is a lack of goods on shelves.”
Criminals toast lack of checks
Some also argue the U.K. has reduced its border security with the EU when it comes to criminality and illicit trade as a result of the ditched border checks.
Anna Sergi, an expert in organized crime at the University of Essex, said the British ejection from various EU policing institutions had reduced the chance of criminals being be caught when sending illicit goods to the U.K.
She said the fact EU police would not be alerting British forces to suspected crime means Britain could become a haven for things like illegal tobacco and hard drugs, while the lack of border checks will reduce barriers further.
In another move designed to ease supply chains and reduce wait times for trucks at borders, the U.K. is mulling a plan to stop checking lorries leaving the U.K. for Europe that truck companies say are empty. As first reported by POLITICO, ministers hope the new rules will take effect by the beginning of July. While the EU refused to comment on British border management, EU rules allow member states to increase checks on empty lorries entering their borders if they think there is a specific risk.
"There's one thing that is always true around the world when it comes to illicit trade,” Sergi said, speaking from the perspective of an organized criminal. “The more black holes you have, the better you are at reducing risk."
One senior business leader said about the ditched import checks: "If you're a criminal and you're shipping illicit goods, you must be licking your lips and cracking open the champagne because the chances of getting your illicit goods through is infinitely higher.”
Another business figure said the longer the checks on goods imports are postponed, “the wider the window for bad operators to come in and take advantage of the situation.”
The U.K. will be hoping that EU police will catch criminals on the Continent before their goods reach British shores. But the minister quoted above insisted the U.K. was not outsourcing its border security — just taking a practical step in a world where standards are high.
"We're not saying we're leaving the EU to do our work," the person said. "We're saying that a lot of exporting nations are exporting things that are of a good standard." The same minister added that the government still intends to undertake some risk-based checks as part of its future border model.
Graham Lanktree and Leonie Kijewski contributed reporting.
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