Thursday, 13 July 2017

The wrongest end of the stick

The National Database of Stupid Opinions (aka Spiked) has said of the repeal bill that:
The government insists this is largely a ‘technical bill’ which will ensure that the rules we live under will be the same on the day after Brexit as the day before. Even existing rulings of the European Court of Justice will still stand, and enjoy the same standing as those of the (equally unelected, unaccountable) UK Supreme Court, subject to future judgements.

This approach risks reducing what Brexit secretary Davis hails as ‘one of the most significant pieces of legislation that has ever passed through parliament’ to a technical exercise in top-down continuity. It looks like a missed opportunity to implement the democratic changes demanded in the Brexit revolt."
That's exactly what I would have written if I knew absolutely nothing about trade, law and Brexit in general. The fact is that there is forty three years worth of rules, regulations, judgements and systems to dredge through. This is a feat of legal engineering that will take several years to complete.

In this, we can't sift through every single item and do an a value assessment on it. This is purely about achieving parity so that there can be convergence in those areas covered by a future trade agreement. You cannot have frictionless trade without regulatory harmonisation. Even if we were to go down the avenue of mutual recognition you would still need to start out from a similar base - and divergence would have to be done by way of negotiation.

Only when this process is completed with the final trade agreement in place can we start looking at those rulings and legal frameworks not covered by the deal and think about replacing them. In that respect there are going to be hundreds of areas of varying importance to take a look at, and some will have to stay exactly as they are - not least because a lot of technical regulation is written by expert bodies and it's actually pretty good.

More to the point, we have international treaty obligations we will carry over. Much of what is done in the name of the EU is the EU enacting certain global accords on things like climate change. These are accords we will continue to implement. Then there is the WTO agreement on technical barriers to trade which means the global standard must form the basis of our technical and trade law.

For now though, we have no idea what the final agreement is going to look like and if we want to port over a number of third country trade agreements it follows we will have to maintain a high degree of convergence.

The only way to leave the EU is to evolve out of it, and that means ramping down from the position we are currently in. The first step is the legal engineering to bring about parity. Because EU law, regulation especially, grants authority to EU agencies and recognises EU systems and databases, the law will have to continue recognising them until we are in a position to switch systems. In the case of aviation safety certification that could take anywhere up to ten years. Customs systems alone will take at least five years to develop.

The reason the bill grants extraordinary powers to the executive is because there will have to be fudges made just so the law makes sense. Not everything can be put in front of a committee for debate. We can expect the government to play fast and loose with this kind of power but the more egregious examples will be leaked and we can expect a lot of whistle-blowing. That was always going to be the case.

This process is not about implementing the changes "demanded in the Brexit revolt". This is about a seamless handover between jurisdictions and though everyone is complaining about it, there is literally no other way to do it. In any case, if you are scrapping a regulatory system, you have to have something to replace it with. For that you are looking at an extensive policy and systems analysis and you can't do it on the fly. To believe that we can is yet another naive underestimation of the depth of EU integration.

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