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Background
An important argument in favour of Brexit was that an undemocratic EU Commission was constantly extending its remit and would continue to do so until it took on most of the powers of a sovereign nation state. Health has never been one of the competences of the EU, but the Commission took advantage of the pandemic to put itself in control of vaccine policy. Its argument was that the mighty purchasing power of the EU could be brought to bear in getting the best deal out of global pharmaceutical giants.
One of the core beliefs of the EU elite is that might helps mightily in negotiations over trade and other matters. This was at the centre of the EU approach to Brexit negotiations. The EU market, it emphasised, is huge, and any tariff-free access to it is a great privilege that can only be accessed at considerable cost. No matter that the UK gained much less in value of exports to this huge market than the EU gained to the much smaller UK market. With much of the UK media swallowing the EU line, it seemed – at least until the arrival of Johnson and Frost – to be working.
Vaccine procurement – EU approach
Thus, the Commission confidently asserted that it could get a better deal on vaccines if member states pooled their purchases in an EU procurement programme. Although the 27 states could have gone it alone, they came under sufficient pressure to let the Commission have its head. This slowed down the signing of contracts by several months, but in the end the Commission negotiated lower prices than the UK and persuaded the pharma firms to accept liability in case things went wrong. Centralisation did not remove all national pressures, and contracts appeared to reflect national interests, including a contract for the French pharma champion Sanofi, which now cannot deliver until at least the end of 2021.
Single Market above citizens’ lives
Indeed, it is noteworthy from the terms of the EU’s contract with AstraZeneca that accruing advantages to the Single Market and enforcing a protectionist industrial policy appears to have had as much to do with vaccine procurement by Brussels than considerations of public health. Why is there an insistence that vaccines must be manufactured in the EU? This very insistence has led to the shortage of vaccines currently faced by member states as vaccine development within the EU has floundered or been hindered by red tape. Any prudent government would purchase vaccines from anywhere in the world provided they passed regulatory checks. Instead, the EU sought to force local production of vaccines despite the risk of ending in precisely the position in which it now finds itself. For an organisation which has spent the past four years telling the UK that the EU is the only true champion of citizens’ rights, its disregard for the lives and livelihoods lost as a result of its grave political miscalculation is another breath-taking example of its lack of self-awareness.
Vaccine procurement – UK approach
The contest between nation-state flexibility and EU might, has been decisively settled by the nimbleness of UK policy. In setting up the Vaccine Task Force last May under an experienced pharma insider, Kate Bingham, the UK invested in speed and effectiveness. There was no pressure to minimise vaccine prices and none to pass liability onto the pharma companies. Pressure from Remainers to join the EU purchasing conglomerate was rejected. Able to assemble its own team of experts without political interference, the VCT made rapid decisions and secured large numbers of doses from firms which developed the earliest successful vaccines.
Deals were quickly done to re-establish outsourced production capacity within the UK. Cambridge headquartered AstraZeneca now has production sites in Oxford, Keele and Wrexham. The new Novavax vaccine will be produced in Stockton-on-Tees, and French biotech firm Valneva is developing a plant in West Lothian. An ingredient for the Pfizer vaccine plant in Belgium is also made in East Yorkshire.
The backlash from Brussels
Having come late to the game, the EU was embarrassed by the slowness of its vaccine approval and rollout. At the end of January only 2% of its people have been vaccinated compared with 11% in the UK. EU citizens, especially in Germany, were understandably furious, and the German government ordered 30 million vaccine doses outside the EU consortium to get things moving. In a move which helped to disguise the EU’s lumbering approach, the German Robert Koch vaccines agency stated that there was insufficient evidence that the Oxford vaccine was effective for the over-65s. Only days later the European Medicines Agency gave approval for all ages, and by this time virtually all over-80s and many over over-70s in the UK had already received a first jab. The German press muddled its numbers to describe the Oxford vaccine as 8% effective for the elderly. President Macron soon joined in the trolling of the UK, and in Trump fake news fashion stated with no proof whatsoever that the Oxford vaccine was quasi-ineffective for the elderly. He also described the UK rollout strategy as not serious. It is of course unlikely to be a coincidence that vaccinations were suspended in three French regions the same day, including Paris, due to insufficient doses.
An incendiary move
The EU establishment’s embarrassment appears to have turned to panic as AstraZeneca announced that its European factories were experiencing production difficulties which would reduce the availability of their vaccine to EU countries. Pfizer was already having problems, albeit less serious ones. The prospect of falling even further behind the UK led to the EU taking powers potentially to ban the export of any Covid vaccine produced inside the EU. The ban is partial for most EU neighbours including the Ukraine, Belarus and North Africa, but specifically targets the UK, USA and Japan.
Having stoked the fire, the Commission then threw petrol on the flames by announcing (without the required consultation) that it would unilaterally invoke Article 16 of the Northern Ireland Protocol, in order to prevent EU-manufactured vaccines reaching the UK via the open Irish land border. Having spent years grimly warning about the calamitous political and economic damage from a customs land border in Ireland, this sudden volte-face caused uproar, with all parties in Ireland, north and south, denouncing the hypocrisy. The equally sudden reversal of this policy within 24 hours completed the shambles.
But the mask having slipped, it cannot now be replaced. Such a demonstration of egregious bad faith is not only hostile, as Northern Ireland’s First Minister Arlene Foster has said, it also provides encouragement for those in the UK who wish to repudiate the Protocol and to rely on Anglo-Irish diplomacy to discuss our mutual interests. The EU turned the Irish border into a weapon, creating a legal straitjacket for the UK in the Protocol. Any standing it might have claimed in Anglo-Irish affairs is now irretrievably forfeit.
Reading the small print
While the French media has largely ignored the issue, there has been a frenzy in the UK with even ‘rejoiners’ including David Gaulke unable to defend the Commission. The UK Government has said little except to reassure the British public that its projected vaccine supplies will be delivered. It appears to have had assurances from Pfizer that its contract with the UK would be honoured. The EU argues that even if the AstraZeneca supply problem arises in factories within the EU, the consequences should be shared by the UK, which actually funded the vaccine’s development and manufacture in Britain. First come, first served is not relevant says the EU’s health commissioner. The claim made by the Spanish Foreign Minister on BBC2’s Newsnight, that EU pressure would be confined to ensuring that firms honoured their contracts, is clearly false. The EU’s case has been a commercial dispute with AstraZeneca all along, but the export ban is political and would apply mainly to already purchased Pfizer vaccines destined for a rival customer. Nor does the EU interpretation of their contract with AstraZeneca hold water. The contract has 13 mentions of ‘reasonable best endeavours’ (contrary to the assertion of Commission President Ursula von der Leyen) yet the EU says that this is a binding commitment on AZ to deliver whatever the circumstances.
What does article 16 of the Protocol say?
The Irish Protocol contains an emergency break inserted in case of adverse circumstances to allow a temporary period to effect limited remedies. Article 16 in full says:
- If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this
- If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this
Although UK Brexiteers have expressed interest in using Article 16 to remedy the difficulties being experienced in Northern Ireland over the Irish Sea customs border, there is no sign that any UK government would have gone that far. It is therefore astonishing that the EU, which so loves to tout its ‘rules-based order’, should have sought to undermine the Protocol (which it insisted on) in this way, only one month into its application. It also demonstrates emphatically the cynicism behind the EU’s continually repeated assertions than any land border in Ireland would have drastic consequences.
Potential next steps
Even though the cat is well and truly out of the bag and the EU’s position on the Protocol has been exposed for the sham it is, the cautious and legalistic, approach of Michael Gove is likely to continue. No attempt to replace the Protocol is likely to occur but by operating strictly within the law and within the Withdrawal Agreement’s Joint Committee, he may now be able to leverage the EU’s injudicious attempt to use Article 16, in order to find a speedy remedy for all the problems being experienced over imports from GB into Northern Ireland. It should be remembered that the Joint Committee can actually rewrite the terms of the Withdrawal Agreement and Protocol. Now would be a very good time to reopen talks on just such a revision.
The best prospect of getting rid of the Protocol altogether remains the vote required in the Northern Ireland Assembly in 2025. This had until now always seemed a long shot, since nationalist MLAs in the NI Assembly are thought likely to support the Protocol regardless of the economic consequences; and there are too few unionists to drive through a rejection. But the Article 16 vaccines experience could potentially change the balance of opinion.
Completely unexpectedly, this very tangible issue – which has a grave impact on everyday life on both sides of the Irish border – has demonstrated to a sceptical public in Northern Ireland the advantages of a nimble nation state over the ponderous legalism of the multinational EU. The full impact has also yet to come. With virtually all over 80s in Northern Ireland already vaccinated, almost 90% of future Covid deaths should soon be avoided. If, as expected, the death rate in Northern Ireland plummets while it remains high across the border in the Republic (where the Oxford vaccine has only now belatedly become available), the advantage of being outside the EU will be obvious to all but the most diehard Remainers.
The crisis that the EU has created is surely an opportunity for a positive reboot of Anglo-Irish relations. The British government ought seriously to consider offering vaccines from its surplus purchase as neighbourly support to the Irish. There is a pragmatic reason for doing so, given the common travel area. Arlene Foster has suggested that Irish help over Northern Ireland’s difficulties with the Protocol might be a quid pro quo, and although we would not necessarily support making this a condition it would not be unreasonable to expect a helpful response from the Irish government. The UK government has supported AstraZeneca’s plan to make its vaccine available at low cost to poorer countries and may also offer vaccines to the wider EU to help it out of its current difficulties. Covid-19 does not respect borders or nationalities. The solution does not either.
