Brexit as demanded by the hardliners stands on the faulty premise that after Brexit the UK is free to do as it pleases and any arrangement where the UK remains bound to the EU is simply not Brexit. Of course we can have such an arrangement but trade and cooperation requires a formal relationship. Sooner or later we would have to surrender to that reality.
The question of Brexit, therefore, was always one of changing our relationship with the EU and deciding the form and extent of that relationship. For all this time we've been caught up in the debate over whether to leave (and why) while the debate over the shape of the future relationship has been shallow and strewn with misconceptions.
This is why I have some considerable animosity toward fellow leavers who have never confronted the unpalatable trade offs that stymy many of our Brexit aspirations. We get the likes of Paul Embery and Claire Fox who are essentially parasites, piggy backing Brexit as a platform for their own personal advancement, massaging their audiences with bogus notions of what we can realistically hope to achieve with Brexit on everything from state aid to fishing.
This hinges on one word. Sovereignty. We have been all too obsessed with British sovereignty while failing to notice that the EU wishes to safeguard its own sovereignty. They have decided the standards they wish to maintain and will act to ensure these standards are not undermined through unfair competition and cutting corners on regulation. They set the terms of market participation and will not grant preferences and participation rights to countries working counter to their international ambitions.
And there's one oft overlooked factor here. The EU is considerably bigger than us with more international clout and even without the UK it remains a global regulatory superpower. If the UK wants to do business in the EU then the EU calls the shots on the terms and conditions. If the UK wants to sell or land fish in the EU (and it certainly does since over 70% of our catch goes to the EU) then we have to conform to their regulatory expectations encompassing sustainability and food safety. We would do likewise. There are reasons why there is a ban on certain Indian seafood products.
But then this goes far beyond fishing. It encompasses all manner of regulatory concerns from waste disposal through to air travel - all with transboundary implications. Here we can get caught up in the detail of where we choose to align and where to diverge, and what mechanisms are available to us such as dynamic alignment and equivalence in order to facilitate commerce, but the relationship is less defined by the areas covered as it is the overarching institutional make up and its governing apparatus, taking into account dispute resolution and court jurisdictions.
Obviously the EU is not going to allow third countries to interpret EU law for it. There will be a role for the ECJ thus those areas still governed by EU regulation essentially remain under EU jurisdiction. This is something the Brexiteers want to keep to a minimum and we can already see there are to be battles over the extent of so-called level playing field provisions. Here the Brexiteers will stamp their feet and demand a minimalistic approach. They may even get their way but if the UK chooses minimal alignment then it can expect minimal market preferences.
Though the Brexiteers will no doubt see this as a victory, while they're busy banging on about taking back our fish, they probably won't have noticed the shape of the governing instruments that will remain a constant as the relationship evolves. There may only be a minimal role for the ECJ as we leave the transition period but then the ratchet begins all over again (this time with no exit mechanism) and as we negotiate re-entry into EU markets in the following years. The more we align the more we become an unwilling supplicant of the EU with the ECJ making our decisions.
Here we should recall that bilateral relationships are a continuum and the agreement is a framework for evolving trade and cooperation between the two parties. The Tories may for a time be content to keep a distance from the EU but when they are inevitably kicked out, Labour will likely start the ball rolling on reintegration of trade. That then becomes an unstoppable trend.
This, of course, was anticipated by The Leave Alliance, which is why we took the view that EU membership had to be reverse engineered rather than starting from scratch. There is now a danger that we will creep toward something rivalling the EEA in scope but entirely under ECJ supervision with the UK becoming a passive recipient of rules. Membership in all but name. This is fundamentally why we preferred the EEA Efta model.
As it happens I'm not a fan of the single market and the EEA means a great many disappointing compromises but the central issue was, is and always will be the governing architecture for the relationship, where the EEA, being an adaptive framework, allows for reconfiguration and renegotiation while cutting the ECJ out of the frame. For larger modifications we could enlist the support of other Efta members, perhaps even working toward including Switzerland to create a non-EU pillar of the single market.
The reality of our predicament is that the EU has an inescapable regulatory gravity and even if we were to cut loose from it entirely we would feel the influence of it as we encounter the regulatory stipulations between the EU and Brazil, the EU and Japan, the EU and South Korea, Canada and anywhere else where there exists a comprehensive EU FTA.These realities are going to give "free trade" Tories a serious headache and will result in a number of embarrassing climb-downs.
The fact is that the EU's regulatory gravity combined with our historic membership and our close proximity means we were never going to break the orbit from the EU regulatory systems and when they are so closely intertwined with the WTO system, along with the galaxy of global regulation, environmental conventions and international standards, divergence was always an obsolete pipedream. The Tory right agenda may have been achievable thirty years ago but since then the EU has essentially become the centre of the regulatory universe. Where it employs equivalence it essentially says you can have any rules you like so long as they are ours. Font and is optional.
Moreover, since regulation and the regulatory process is an expensive business, smaller nations without the intellectual resource and political runtime have taken to copying EU regulation verbatim out of convenience where there is no existing regulation in place, usually with a view to accessing EU markets in the future. They are not going to be persuaded to diverge to a British model.
One suspects the Tories are going to have to find this all out the hard way. Yesterday the Spectator floated an article suggesting we should join the Comprehensive and Progressive Trans Pacific Partnership (CPTPP). The CPTPP is a high-quality free trade agreement which binds together Australia, New Zealand, Canada, Japan, Singapore, Vietnam, Mexico, Malaysia, Peru, Chile and Brunei. This is far from a credible proposition.
The EU is presently developing enhanced FTAs with at least eight of them, encompassing EU level playing field provisions and chapters on standards and regulatory cooperation. Being that CPTPP is not a regulatory union, its members are distant regulatory satellites of the EU, divergent only in those areas where it makes no particular sense to align due to their positioning on the other side of the planet thus naturally excluded from short hop supply chains and exports of fresh produce. It's also counter to trend as globalisation reverts once again to near-shoring.
One also notes that the CPTPP agreement is only a shallow agreement with nothing particularly to speak of on services and no regulatory frameworks to create regional markets. There is perhaps the basis of a Pacific bloc but when sandwiched between two other rival regulatory powers (China and America) its chances of becoming a contiguous regulatory bloc are nil.
All of this has ramifications for any future trade deals. The Tory mentality is one of "notches on the bed post" believing one trade deal to be much the same as another, completely failing to grasp that they vary in scope and each has consequences for the next. Little of this registered when the extent of comprehension is limited to tariffs. And even then it doesn't seem they have a handle on that either. Thanks to this (wilful) lack of comprehension the UK is embarking on a half-baked, doomed experiment based on Tory "free trade" delusions and the ill-conceived notions of sovereignty among Brexiters.
The elaborate instruments that have interfered with direct expressions of national sovereignty exist with good reason and the UK had a hand in their creation. Our departure from the EU doesn't mean the EU stops existing or influencing the rest of the world. It is a reality with which we must contend and our post-Brexit strategy (such that it is) can only fail if we are not mindful of it. Our goal should have been to safeguard our position of relative economic strength by preserving our deep trade relationship with the EU, then carefully setting a path to independence. Instead we're inflicting massive economic damage of our own volition and by our failure to anticipate where this might lead we are on a path to subordination and vassalage. Taking back control this is not.
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