David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the recent general election.
At Thursday’s virtual European Council meeting, the EU stepped back from imposing a vaccine export ban. This is just as well.
At a time when all nations face the same enemy and seek to apply the same solution, the case for international co-operation is overwhelming. We all know that maximising the production and take-up of the vaccines is the way out of the Covid crisis, and we all know that using global supply chains should be the swiftest way of producing the vaccines we need. Talk of export bans makes this task harder.
For some on the Remain side of the Brexit debate, there is an instinctive desire to defend the EU and cast the UK as vaccine nationalists or selfish panic-buyers and AstraZeneca as contract-breakers, arbitrarily favouring one customer over another.
It is, however, an unconvincing case. In contrast, had the EU proceeded to block vaccine exports to the UK, its behaviour would have been indefensible.
If one believes in open markets, removing trade barriers, building up trust between trading partners and honouring contractual obligations, one should be prepared to be critical of EU behaviour contrary to those values, regardless of where one stood on the subject of Brexit. I am sure many Leave voters who share these values must, from time to time, hold similar views about some of the actions taken by the UK Government.
Some have defended the proposed export ban stating that others are doing it. It is not much of a defence, but it is true to say that the US – under both Presidents Trump and Biden – has used legislation to prevent vaccines manufactured in the US from being exported. The Indian Government has also stepped in to prevent the export of doses. On the charge of vaccine nationalism, the US and India are guilty and the EU, as yet, is innocent.
The charge that the UK has a de facto export ban is, however, nonsense. There is a clear distinction between an entity not being provided with vaccines because the export has been blocked by government action, and an entity not being provided with vaccines because it has no right to it because they have already been acquired by someone else.
Underlying the EU case is a confusion between the entity producing the vaccines and the country in which the vaccines are produced. Some EU leaders have argued that it is not right that a large proportion of ‘EU vaccines’ have been ‘exported by the EU’. As the Taoiseach, Micheál Martin, pointed out earlier this week ‘these are not European Union vaccines… these are vaccines paid for by other countries that are manufactured in Europe.’
Is it right for the EU to characterise AZ as the villains of the piece for failing to fulfil its contractual obligations? When this row first blew up in January, the Commission argued that once the procurement contract was published, it would be clear that AZ was in breach.
The contract was published and it established no such thing. Without delving too far into the complexities of contract law, if AZ were failing to allocate vaccine doses to the EU in accordance with its contractual obligations, it would be open to the EU to seek legal remedy. Given that the EU is not doing this suggests that the Commission has little confidence in its legal position that AZ is in breach of its contractual obligations.
Did AZ agree better terms for the UK than for the EU? This may well be the case, and would be consistent with the Commission’s lack of confidence in its legal position. Does this mean that the UK engaged in sharp practice in the deal it got? No. First, competently negotiating a contract is no sin. Second, the UK – and the UK taxpayer – played an important role in developing the vaccine, first with Oxford University and then with AZ. This engagement enabled AZ to ramp up its production following an agreement signed in May 2020, months before the AZ/EU deal. This early ramping up of production, by the way, has probably helped not hindered the EU.
There is a comparison to be drawn with Germany and BionTech. Germany supported BionTech, which developed the vaccine that is being manufactured by Pfizer. In contrast to the UK and AZ, Germany did not nail down priority supply either for itself or for the EU.
As a consequence, many Pfizer doses are manufactured in a country that refuses to export to the EU or is exported from the EU to those who have placed an order. It would have been perfectly reasonable for Germany (or the EU) to say “we’re funding the research and development and agree to purchase the first X million doses”. But neither Germany nor the EU chose to do so. Again, that is not the UK’s fault.
The botched procurement by the EU is the route of many of the problems. The Commission was focused on the wrong issues in the circumstances, worried about the price and liability in the event of vaccines causing harm. Speed mattered and gambling large sums of money at an early stage was the right thing to do, as the UK demonstrated. The Commission, perhaps because it does not have its own tax base on which to call, was more hesitant.
Many a commentator has speculated that, had the UK still been part of the EU, we would now be stuck in the EU slow lane. However, it is inconceivable that a UK Government seized of the need to make rapid progress on this front would have surrendered control over the vaccine programme.
In all likelihood, an alliance of the UK and Germany would have ensured member states retained control, resulting in greater urgency in vaccine procurement. As members of the EU, we were a consistent voice of scepticism towards greater integration and, in this particular matter, our absence has been to the EU’s detriment.
Where does that leave us? The EU is well behind the UK in the vaccine rollout, it does not appear to have a legal remedy against AZ (presumably because AZ is fulfilling its ‘best endeavours’ contractual obligations) but the relationship between the EU and AZ remains toxic. The immediate threat of an export ban has dissipated but EU politicians are under immense political pressure. Until this pressure eases, the risk of a foolish intervention by the EU remains.
This incident also emphasises that our relationship with the EU matters. On this occasion, the European Commission has behaved very badly in the same way that I think the UK has behaved very badly over the Northern Ireland Protocol. But we must do more than just apportion blame. We have to make this relationship work because, if we do not, both sides have the capacity to do the other side a lot of harm. More often than not, the smaller party – in this case, the UK – will come off worse.
On both moral and legal grounds, the UK is in a strong position in the vaccine dispute. But the wise approach would be to reduce tensions. The national interest would be served by making some contribution to helping them out, even if the Commission doesn’t really deserve it.