“EU vaccine war explodes,” screamed the Daily Mail in its first edition. Then hours later its headline had changed to “EU Jabs Climbdown” as it accused the EU of performing a ‘screeching U-turn’. Wait. What? There had been a war and it was all over eight hours later? What on earth was going on?
It was an escalation of the crisis which had erupted a few days before, when British-Swedish pharmaceutical company AstraZeneca (AZ) informed the EU Commission (EC) that it would fall short in the delivery of the millions of doses it had promised for the end of the month. “Short by how much?” asked a concerned EC. Sixty per cent, came the reply. Ouch. The EC was understandably upset.
The contract dispute rumbled on beyond the horizon of British consciousness. The EC claimed AZ had made a firm commitment, while AZ countered it had only agreed to deliver on a “best reasonable efforts” basis. No, said the EU, the “best reasonable efforts” clause applied only to the development phase. Once the vaccine existed, AZ had a duty to deliver it, in accordance with the contract. “Ah, but the Brits signed their contract before you…” Irrelevant. AZ had freely entered into a contract to supply, so supply it must.
It was at the point when the EC asked how come the Brits had got their deliveries that UK politicians and pundits pricked up their ears. The EC was claiming it should also receive vaccines from AZ’s sites in the UK, as these were expressly named in the contract as part of AZ’s supply network.
“Hands off our vaccines,” carped Michael Gove, as if the EC was somehow trying to steal something it was not contractually entitled to. “No, EU can’t have our jabs!” echoed the Daily Mail, unsurprisingly, as one of their top contributors, Sarah Vine, is Mrs Gove. The Daily Express chimed in with, “Wait your turn!” and in the intemperate manner Express-watchers have become accustomed to, accused the EC of trying to ‘hijack’ OUR vaccines. The absolute rotters!
The EC tried to calm things down. It reassured the UK: this is a contract dispute between us and AZ. There’s no reason for the UK to be dragged into it. But our politicians and press were spoiling for a fight, and they smelled red meat. Vaccine is the one possible success story of our government’s lamentable mishandling of the Covid-19 pandemic (the jury is still out on the one-jab policy and waiting well beyond the recommended three-week gap to give the second dose of the Pfizer vaccine). Understandably, there is a lot of emotion and pride invested in the vaccination programme, so here was a golden opportunity to reinvigorate the culture war, whip up old Brexit-Remain divisions and roast the EU into the bargain. What unscrupulous soul could resist?
With the situation now descending into three-sided acrimony, the EC decided to publish a redacted version of the contract, although people were soon sharing a trick as to how to get around that and read it in full. And then a miracle happened —
Suddenly, everybody in the Twittersphere became an expert in contract law. People were searching the document for ‘best reasonable efforts’ and BINGO! They found it. Those with legal training tried to explain that just because the phrase appears in the document, it doesn’t mean that it is a general principle underpinning the entire contract. It is possible, as is the case with this contract, that it is specific to a given chapter, or even a single commitment within the agreement. Furthermore, the contract is governed by Belgian Law and there is a precise meaning of ‘best reasonable efforts’ in that body of law.
Nope. They weren’t having it. Citizens of brave new Brexitannia with no legal experience whatsoever were still not ready to admit that their opinion might not stack up with the facts about contract law. Thank you once again, Michael Gove.
As if that wasn’t bad enough, they then started to invent their own law. “It’s first come, first served, innit?” Well, no. A company has a responsibility to fulfil whatever contracts are in force at any given moment, according to the terms it has agreed to. There was no queuing mechanism mentioned in the agreement. Indeed, clause 13.1(e) stated that AZ was not under any agreement, contractual or otherwise, that conflicted or interfered with their ability to fulfil their contract with the EU. However, on the face of it, there do appear to be a few loopholes, including a force majeur clause that includes ‘pandemics’ as a viable excuse not to deliver. Oh, the irony!
Now, companies fall behind schedule all the time for one reason or another. It’s then a case of the two parties getting together and agreeing on how to remedy the situation. If an amicable solution cannot be found, then they will follow the hierarchy of dispute resolution mechanisms in the contract, and only end up slugging it out in court if all the other options are exhausted.
To help resolve the crisis, the EC considered introducing export controls on the vaccine produced within its territory. That’s understandable, if disappointing. After all, the US has done the same. The UK introduced a ‘serve us first or else’ clause in its contracts with pharma companies, while introducing controls on parallel exports of over 170 medicines, including some (like dexamethasone) used in the treatment of hospitalised coronavirus patients. Not a full export ban, but it does have the effect of tightening distribution and reducing supply. It was a bit rich of Foreign Secretary to pop up at this point and bang on about ‘vaccine nationalism’. He must be trained as a fire-eater to be able to swallow so much hypocrisy.
The idea of export controls raised the issue of Northern Ireland, which is in the single market for goods and potentially an avenue for smuggling for any restricted goods. Unfortunately, to cope with that issue, the EC then considered the nuclear option of invoking Article 16 of the Northern Ireland Protocol (NIP) to the Brexit deal as a way to close its ‘back door’ to the UK. And that’s when all hell broke loose …
Let me digress to explain that Article 16 of the NIP allows either party to override the Brexit treaty and unilaterally suspend trade in emergency situations. However, it is not a blanket block. Rather it is limited to the product or products listed in the notification of the invocation of the article. Furthermore, in this specific situation, it would have no impact on Northern Ireland sourcing vaccines from Great Britain, nor would it lead to more checks on the island of Ireland, as the EC doesn’t have the power to impose them.
The story ‘emerged’ that the EC had triggered Article 16. Social Media whipped itself up into a toxic frenzy. How dare the EC erect a hard border in Ireland? Whoa! They were only putting export controls on Covid-19 vaccines to improve transparency of what was going where and when. No, as far as DUP leader Arlene Foster was concerned, the EC had betrayed the Brexit Agreement and trashed the Good Friday Agreement, after claiming to care so much about the latter for the past five years.
This would have been hilarious had it not been so serious. Two weeks previously, one of Foster’s Westminster MPs had implored Boris Johnson to invoke Article 16, and the Prime Minister had assured him from the dispatch box, “We will have no hesitation in invoking Article 16.” Radio silence from the press. Not a single pundit squawked about Johnson threatening to set up a hard border in Ireland, or his despicable behaviour in so doing. What a difference a fortnight makes. Three hundred and thirty-six little hours…
Meanwhile things were getting ugly in the Twittersphere. They’d gone from nah-nah-NAH-nah-nah British vaccine arrangements are better, to the EU being slower to procure vaccines meaning more people would die. I had to knock that last one on the head —or try to. Look at New Zealand and South Korea, I implored. They both had very low death rates and are now covid-free, yet neither had sight of a vaccine. In other words, you can beat Covid-19 without a vaccine with the right combination of mask-wearing, social-distancing, test-track-and-tracing, self-isolating and lockdown measures, and the financial support from the state to make them all possible.
For people in the country with the highest death toll in Europe to be fixating on fictional deaths that hadn’t happened yet (and might not ever happen, with the right combination of measures), because the EU was a month behind the UK in its vaccination programme, was extraordinary to witness. “Their ineptitude will kill people,” they said, without irony. Never mind the incompetence and corruption of our own government, which a year later still hasn’t managed to set up basic checks on arrivals at airports, let alone get basic measures right. Over one hundred and five thousand deaths, forgotten. Slow hand-clap for Number 10’s propaganda team. They and their buddies in the press have successfully gaslit too many members of the public.
By the end of the day the EU had capitulated. It issued a statement that it would not be invoking Article 16. Spanish Foreign Minister Arancha Gonzalez-Laya told BBC Newsnight it had all been a mistake. Wait a minute. Hadn’t Article 16 already been invoked? The BBC said so. ITV, Sky, other channels, various print journalists too. If it was all over the British press, it must be true, right?
True confession: I had no intention of writing about this incident. On a rainy Saturday afternoon, I lay in a semi-vegetative state after a few stressful days overwhelmed by the tsunami of hate on social media. I chat-surfed, going from Messenger, to Twitter, to WhatsApp, to Telegram, to Signal and back again. (How does anybody get any work done? Social media is a full-time job.) I kept dipping in and out of a chat on combatting Covid disinformation that some of my fellow West Country Bylines writers are in, and noticed that Lucy Pope was asking what the source of the announcement about the triggering of Article 16 was. Who exactly at the Commission had done it, and where was their statement? Answer there came none.
I checked. Nothing on Commission President Ursula von der Leyen’s timeline. Nor on that of the Commission itself. Nor on that of Stella Kyriakides, the Health Commissioner. Peculiar. Then I tried to reverse engineer it. I checked the timelines of TV channels and Brussels-based political editors to see if they might have a link to it, but I came up empty-handed. Curiouser and curiouser! I spent hours reading the foreign press. There was a marked difference in tone to that of the UK press. It was all so much calmer, for a start, and crucially they were all talking about invoking Article 16 in the future, not the past tense.
Eventually, I found a link to the EC’s original statement, but it had been taken down. I tried the Wayback Machine, an Internet archiving service. Success! There was one impression of the document, at 15:28 on 29th January, 2021. I was in business. Oh, but something wasn’t quite right. There were ‘placeholders’ in the document, marked in red ink, yet to be filled in. This looked very much like a draft, and its rapid removal suggested it might have been uploaded in error. This couldn’t possibly be the document to trigger Article 16, could it?
I went to two of my go-to legal eagles on Twitter to see if they had anything to say about it. Of course, David Allen Green and Professor Steve Peers were way ahead of me, and had also spotted the now-you-see-it / now-you-don’t nature of the document, and tracked down a copy. Unlike me, however, they deemed its publication on the EC’s official website, no matter how briefly, to mean that Article 16 HAD been triggered. But-but if it’s the case that Article 16 can be triggered by the mere uploading of a document, without following the procedures laid down in the NIP (like holding a consultation with the other party to the agreement), then there is something seriously wrong. So serious an act should not be capable of being performed in so desultory a manner.
What to make of it all? Had an intern been over-zealous and released a work-in-progress document prematurely? Is that what Sñra Gonzalez-Laya had meant by “an accident”? Was the EC too embarrassed to admit to it? Why hadn’t British journalists noticed that it was a draft and questioned it? The red lettering was a dead give-away, yet none of them had mentioned it, and they alone spoke of Article 16 having been triggered, rather than “envisaged” as their European counterparts said. Unless, briefly, there had been a finalised version, but it wasn’t up long enough to be captured by the Wayback Machine? Apparently, there was. (David Allen Green has a copy of it on his blog, preserved for posterity.)
The first tweet about it seems to have been from hawk-eyed Douglas Dowell at 16:36, almost one hour after the screenshot taken by the Wayback Machine, noting with bemusement that the EU was apparently invoking Article 16. BBC journalist John Campbell picked up on it fifteen minutes later, and roughly ninety minutes after that he had an article up on the BBC website, which was then retweeted by BBC Political Editor Laura Kuenssberg to her 1.3 million followers at 18:46.
Naomi O’Leary, Europe correspondent at the Irish Times, later lamented:
“The regulation has come down, and urgent talks ongoing in the European Commission on how to fix it. I’d expect a new version by morning. Too late to stop reports that Article 16 ‘has been triggered’ – a contested idea of what Art 16 is – and impression that Protocol is undermined. What a mess.”
Famous Brexiters, like Piers Morgan, hoping that the EU’s near miss on invoking Article 16 would make Brexitsceptics hate it and embrace Brexit, were disappointed. Former Labour MEP Richard Corbett summed it up:
He later ran a poll asking, “Which rectifies its mistakes quicker, the UK government or the EU?” Ninety-six percent said the EU. I’d like to meet the other four per cent. Although u-turns are a regular feature of Boris Johnson’s government, he has to be brow-beaten into the by public uproar, he doesn’t learn from his mistakes and he often doubles down on them.
Screenwriter Dominic Minghella summed up how a lot of Brexitsceptics felt:
All is not lost. There could be a silver lining to this (thankfully) short-lived vaccine war. The Irish Protocol is now so radio-active, neither side can toy with invoking Article 16 for the foreseeable future. To put it more poetically, as Dr Mike Galsworthy did, it is now sacrosanct. That bodes well for continued peace in Ireland.
Hopefully this unseemly scramble between wealthy western countries over ‘millions’ of doses of vaccines will also prompt us to think about how we vaccinate the populations of less well-off countries, who have none. With modern travel patterns, we won’t be properly rid of Covid-19 until all countries conquer it.