Horseracing: The transfer of racehorses and a hard Brexit

By Laura Donnellan, School of Law, University of Limerick

The United Kingdom, along with Ireland and Denmark, became members of the then European Economic Community (EEC) on 1 January 1973.

The UK endeavoured to join the EEC in 1961 and 1969; however, its attempts were thwarted by the then French President, Charles de Gaulle. De Gaulle feared that any benefits that the UK would derive from membership of the Community would be diverted to the Commonwealth. The resignation of De Gaulle in 1969 paved the way for the UK to apply once again to join the EEC.

The Conservative leader, Edward Heath, was the Prime Minister from 1970-1974 and was succeeded by Labour’s Harold Wilson. Heath’s tenure as Prime Minister was tainted by industrial unrest and a three-day working week for most workers in the UK (Rob Minchin, ‘Sir Edward Heath: The notoriously secretive PM who presided over some of Britain’s most turbulent post-war years’, Independent, 5 Oct. 2017, http://www.independent.co.uk/news/uk/politics/sir-edward-heath-latest-profile-child-sex-abuse-allegations-prime-minister-conservative-party-leader-a7984301.html).

The new Labour government issued a ten-page manifesto, Let us work together – Labour’s way out of the crisis (http://www.politicsresources.net/area/uk/man/lab74feb.htm). The manifesto stated that the Labour Party opposed British membership of EEC on the terms negotiated by the Conservative Government. It outlined its pledge to secure a number of changes to the Common Agricultural Policy, calling for the safeguarding of the Commonwealth and developing countries and fairer methods of financing the Community budget; a rejection of an Economic and Monetary Union (EMU); and a refusal to agree to the harmonisation of Value Added Tax (VAT), which would have required the UK to tax necessities. The manifesto referred to the increase of food prices and an erosion of the UK’s sovereignty.  In order to restore confidence in the government, the manifesto assured the people of the UK that a referendum would be held, in order to decide whether the UK would remain in the EEC. The referendum was held on 5 June 1975 and the question put before the people was: ‘Do you think that the United Kingdom should stay in the European Community (the Common Market)?’ The yes vote carried with seventeen million votes and eight million against which accounted for 67.2% supporting the UK remaining in the EEC (David Butler, Uwe Kitzinger, The 1975 Referendum. Palgrave Macmillan 1996, at p.1).

Some four decades after the Wilson referendum, the UK decided, on 23 June 2016, by a 51.1% majority to the leave the EU (known for short as Brexit).

Whilst the free movement of persons, goods, capital and services have been at the forefront of the discourse surrounding Brexit, one issue that could have drastic consequences is the movement of racehorses within the EU, in particular, between Ireland, the UK and France.

In July 2017, the European Union (Withdrawal) Bill (or the Great Repeal Bill as it is more commonly known) was put before the House of Commons (the full text can be accessed here: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf). This Bill purports to repeal the European Communities Act 1972, under which the UK joined the then EEC, on 1 January 1973, and to make other provisions in connection with the withdrawal of the UK from the EU. On exit day, 29 March 2019, the 1972 Act will be repealed; however, with regard to EU-derived domestic legislation, section 2 states that such legislation will remain in force on and after the exit of the UK from the EU. This must be read in conjunction with section 5 and Schedule 1 of the Bill. Section 5 states that the doctrine of supremacy will no longer apply on and after exit day. Schedule 1 details further provisions about exceptions to savings and incorporation.

Currently, there is a tripartite agreement (TPA) between Ireland, the UK and France on the transfer of racehorses.

The British Horseracing Authority (BHA) has stated that 22,000 horses move in and out of the UK every year with the total amount in trade estimated at £300 million (Robin Mounsey, an official spokesperson for the BHA quoted by Business Insider UK, http://uk.businessinsider.com/bha-horseracing-expert-brexit-eu-impact-300m-thoroughbred-trade-2017-3).

The consequences of a hard Brexit raise the question of whether the TPA will be repealed, amended or replaced.

At the moment, this is mere conjecture, as the UK will cease to be a Member State of the European Union on exit day, the TPA as an EU measure may no longer apply to the UK. If a hard Brexit ensues and the domestic legislation incorporating the EU Directive is repealed, then it would mean that the free movement of racehorses would be affected as additional veterinary checks could be required at Customs, which would both be costly and time consuming. Additional documentation/certification would also be required.

As noted above, section 2 of the Bill provides that pre-exit EU-derived legislation will continue to remain in force, unless it is repealed by domestic legislation. If the UK decides not to repeal the Directive on which the TPA is based, then a modified version of the TPA may be the best solution.

The TPA has been in existence for four decades.

In the 1970s, a TPA on the movement of horses between the United Kingdom, Ireland and France was established. Under the TPA, horses could be transferred without the need for formal veterinary inspections between the three countries. In 2005, the TPA was amended to include all equidae, with the exception of those being transported for slaughter.  Under the 2005 agreement, equidae could freely move between the three countries without health checks as long as each animal had a passport.  The amended TPA caused much concern among equine welfare bodies, as the risk of undetected disease and the movement of horses destined for slaughter became increasingly apparent. In 2009, an EU Directive 2009/156/EC on health conditions governing the movement and importation from third countries of equidae was introduced, which had to be incorporated into the national systems.  The Directive covers intra-Union movement and importation from outside the European Union. Under the Directive, exemptions may be granted for equidae used for sporting, recreational or cultural purposes. The Directive had consequences for the TPA.

In the light of the horse meat scandal, which erupted in 2013, it was decided that the TPA would be amended; these amendments came into force on 18 May 2014. Under the new rules, the movement of ‘high health’ horses are traceable between Ireland and France and France and the UK.

The TPA is an example of a derogation given to Member States under Article 6 of Council Directive 2009/156/EC. Article 6 provides:

‘Member States which implement an alternative control system providing guarantees equivalent to those laid down in Article 4(5) as regards movements within their territory of equidae may grant one another derogations from the provisions of the second sentence of Article 4(1) and Article 8(1)(b) on a reciprocal basis.

They shall notify the Commission thereof’.

Article 4 (1) states that equidae must show no clinical sign of disease at inspection and inspection must be carried out 48 hours in advance of the embarkment or loading of the animal.  Article 8 (1) (b) requires a health certificate complying with the template provided for in Annex III of the Directive.

The Directive was incorporated into domestic law under The Trade in Animals and Related Products Regulations 2011 (England), The Trade in Animals and Related Products Regulations (Northern Ireland) 2011, The Trade in Animals and Related Products (Wales) Regulations 2011 and The Trade in Animals and Related Products (Scotland) Regulations 2012. There is much uncertainty in the wake of Article 50 of the TEU (a Member State withdrawing from the EU) being invoked; however, secondary legislation will continue to have effect until and if repealed by domestic legislation.

As the TPA 2014 is based on the derogation under Article 6 of the Directive from 2009, a new TPA would need to be drafted so that its basis was no longer predicated on EU law.  As EU secondary legislation is cited throughout the TPA, a new agreement or a heavily modified agreement would arguably need to be drafted. The full text of the TPA can be accessed at: http://www.equinerescuefrance.org/wp-content/uploads/2010/12/TPA-ENGLISH-PDF.pdf.

If the TPA is repealed and not replaced or modified, then the issue of animal welfare becomes an important consideration. The idea behind the revised TPA in 2014 was based on a number of concerns including animal welfare and biosecurity. The UK and Ireland have a shared health status for horses. As long as the UK maintains protections comparable to those required by EU law, then an agreement between Ireland and the UK and the UK and France could be concluded. It would be subject to the other Member States approving such an agreement with a non-EU Member State (or third country), in this situation, the UK.

Although the original TPA dates back to the pre-accession of Ireland and the UK to then EEC, the agreement, at that time, was intergovernmental in nature. In contrast, the 2014 TPA falls under the derogation under the 2009 Directive. Ireland and the UK could negotiate an agreement between themselves; however, this would be subject to the approval of the other 26 Member States. The fact that a pre-Accession agreement existed will be irrelevant as Ireland being a Member of the EU is bound by EU law and EU law is supreme and supersedes any conflicting domestic legislation.

If the TPA is repealed, then customs duties on horses could be introduced as horses are goods for the purposes of EU law. Currently, Article 28 of the Treaty on the Functioning of the European Union (TFEU or Lisbon Treaty) applies to the UK, and that provides that customs duties and charges having equivalent effect are prohibited. With regard to third countries, there is a common customs tariff. If the UK is no longer part of the common market, then customs duties will need to be paid on the horse on its arrival at Customs. Once the customs duties are paid in one Member State, then the horse can move freely within the EU without incurring any more customs duties. Also, there could be VAT implications.

In an article by Arthur Beesley, published in the Financial Times on 4 October 2017, entitled ‘Irish horseracing fears Brexit could handicap industry’, Beesley asserts that ‘a threat hangs over Ireland’s important horseracing industry — Brexit, which could shatter vital links with the UK, the biggest market for Irish horses and a leading racing centre for Irish owners, trainers and jockeys’.

Until the UK exits the EU, the status of the TPA remains uncertain. It is hoped that a special arrangement between the UK and Ireland could be brokered that would protect the TPA, Beesley cites Will Lambe, the executive director at the British Horseracing Authority (BHA), who proffers that there is a ‘special case’ to be made for the retention of current arrangements’.

 

Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’