Asking the impossible

Continuing the analysis of the UK position paper, the UK has dug its heels in on the matter of regulatory sovereignty, assuming that equivalence means the UK can negotiate the freedom to do as it pleases and be treated as an equal without consultation or coordination. That is, of course, not how the system works. To do so would be to allow the UK to unilaterally decide the lowest bar of market entry which even member states cannot do.

There are modes of equivalence but they are heavily proscribed. As EUreferendum.com notes, New Zealand has, in theory, the freedom to make its own domestic law in any way that it pleases. But, when it comes to exporting animal products (which is the substance of the Agreement), it must accommodate all the requirements set out in EU law. CETA is not dissimilar either.

A Party that has prepared a technical regulation that it considers to be equivalent to a technical regulation of the other Party having compatible objective and product scope may request that the other Party recognise the technical regulation as equivalent. The Party shall make the request in writing and set out detailed reasons why the technical regulation should be considered equivalent, including reasons with respect to product scope. The Party that does not agree that the technical regulation is equivalent shall provide to the other Party, upon request, the reasons for its decision.

Being that the EU is the larger market we can safely assume the equivalence requests are asymmetrical in the EU's favour. The equivalence decision is based on an assessment as to whether regulation has the same effect, upholding the underlying philosphy, and being that global standards and best practice guidelines are central to that estimation, most new regulation will be a direct copy out from EU regulation. This is the Brussels Effect in full effect.

When you take into account that the EU has CETA style FTAs with Mexico, Japan, South Korea, Vietnam and others, the direction of travel is clearly toward global regulatory harmonisation, making divergence largely futile except in those areas where there are no cross-border considerations, which these days are fewer in number, particularly as the scope of what is covered by trade widens under the broad heading of "level playing field".

There is then all the hoo-har and fuss over sovereingty but in most cases there is no rational argument for refusing to adopt entirely sensible regulation, much of which sets only a minimum requirement, and so long as there is a mechanism for dialogue where rules are found to be dysfunctional and safeguard measures where there is a demonstrable problem occurring, there is nothing much to go to the barricades over. It's even less of an issue for the UK when our existing regime is the same by way of our former membership.

Essentially, even if we were to self-isolate, refusing any regulatory coordination with the EU, we would not escape its ever present influence in our dealings with other developed economies all of whom to one extent or other converge in a number of areas where the EU is calling the shots. There will be little enthusiasm for re-configuring regulation or products to fit the UK to serve a substantially smaller market than the EU. Volvo has already asserted that it simply won't bother with the UK market if they have to produce models outside of the UNECE regulatory norms.

There is, though, to be fair, some recognition of this dynamic in that the UK's position paper does at least reference the WTO agreement on technical barriers to trade and the existence of global standards, and if that much has sunk in then it isn't a giant leap for them to realise in negotiations that taking a hard line on regulatory sovereingty is a fools errand. We are likely to see some concession to reality on trade in goods. Furthermore, functioning mutual recognition of conformity assessment is more difficult to achive if the standards framework is entirely bespoke. The UK priority is likely to be regulatory sovereingty in banking and financial services - which is likely the key reason for rejecting the EEA.

The question here is to what extent the hardline signals are for a domestic audience. Brexiteers have proven to be gullible and quite accommodating thus far in that they'll believe anything they're told just so long as it's the right person lying to them. Essentially we still have the same dog's dinner of a Northern Ireland protocol (give or take) but as far as the Boris fanboys are concerned, he got rid of the backstop. UK negotiators can probably make a number of significant concessions without our media or Brexiteers ever noticing. Moreover, if Brexiteers want to wail about something they'll just invent something.

Much here will be contingent on the pitch and volume of Brexiteer propaganda. With BrexitCentral and other noisemakers now having shut up shop and interest on the wane, the EU issue may return to the niche issue it once was, debated only by headbangers and think tank wonks. The Corona virus has knocked the UK negotiating paper off the debate agenda and when it comes to the finer points of regulation and trade, the culture warriors on the Brexit side couldn't be less interested. It's not accessible to all, it's humourless and not particularly entertaining - which is what most people seem to want from politics these days. For all that we criticise the low grade media, they are only giving the public the lightweight toss they demand.

As far as opposition goes, there is none to speak of. The core of remaining remainers can't seem to get over passports and still in a tailspin over chlorine treated chicken. The Lib Dems have vanished off the radar and Labour has nothing of relevance to say to anyone. They seem more interested in opposing the public than the government. With Brexit now having moved on to the details stage, it's now outside our media's gnat-like attention span, and wouldn't report it correctly even if they were capable of it. Brexit was notionally about accountability but nobody seems serious about holding the government to account. Johnson can please himself. The one standard that won't change after Brexit is good old British incompetence.