More hidden Europe.

Like many a weary Brexitologist, I didn't want to spend the day debating smoked fish regulations. As eureferendum.com notes, whenever we hear flatulence from Boris Johnson in respect of regulation, it's safe to assume that he is wrong and very probably making it up. This is also, justifiably, the assumption anyone in the media makes and in this instance the EU has sought to correct the record.

Typically, North senior was first on the scene to point out that, this time, there is a requirement in EU law for these such products to be refrigerated in transit. The full explanation goes much further than the research of the BBC or The Telegraph (as per usual), but now the media caravan has moved on, the record will likely never be corrected. Now that the EU Commission has spoken, that will be taken as gospel and that is that. You can't win in this game when you're below the line.

What's interesting is how the EU denies any responsibility whatsoever, so in one tedious iteration of the great regulation debate, we have a macrocosm of the Brexit debate as a whole. Each side of the Channel is blaming the other, with no clear line of accountability, and only if you have the depth of experience necessary (and the memory) can you really tell what the score is. Of itself that is sufficient reason to leave the EU.

What's interesting though, says Eureferendum, "the Commission spokesperson talks about "national rules" as if they were something separate, standing clear of Union law, entirely under the control of the Member State. Yet any such rules must be directed at implementing the EU's hygiene package, and they must be submitted to the Commission for approval before they apply. They are, therefore, determined by the framework of EU law, even if there is some flexibility afforded in the wording. Effectively, even "national rules" are EU mandated. [...] In any event, it would be unlikely that the commission would approve any national rules that had no provision for temperature control of mail order foods".

Though I couldn't nail the specifics on this one, I was earlier forced to ask whether there really was such a gaping hole in EU rules where it would allow full the discretion of member states on a very specific product type. It didn't smell right. A bit fishy, one might say. But again this is "hidden Europe" at work.     

This relates to one of the oldest debates in the history of euroscepticism. You will remember in the early days, it was claimed by some that Brussels made 75% of our laws. This spawned a similarly tedious row where remainers did some number crunching of their own to produce an entirely different figure suiting their own narrative that EU influence was minimal.

Again that was an entirely pointless debate and fodder for the usual tribal trench warfare which totally misses the point. So much of our law may well have been drafted and passed by Parliament, but Parliament has done so because it is instructed to do so. The 2008 Energy Act is one such example, where notionally it is domestic law but enacts all manner of instruments as mandated by the EU and subject to EU approval. It is, therefore, pretty much impossible to fully understand how many laws truly originate in the EU.

Then as much as our own parliament is an implementing agent, any new technical measures must be approved by the EU - and there are always associated reporting requirements. This is how the EU functions past, present and future. A recently defeated Commission proposal was the Services Notification Procedure (a follow-up to the 2006 Services Directive). The measure would have allowed the EU to annul new laws and regulations developed by national parliaments, regional assemblies, and local governments across Europe if any such measure created a barrier to inter-EU services provision. In effect, any new law at any level, on virtually any subject would be subject to EU approval.

This attracted an unusual level of pushback in mainland Europe but it barely registered in the UK debate. That it was defeated in the European Parliament, though, is neither here nor there. EU proposals never die. They just hide for a while and then sneak in by the back door; a piece at a time if necessary. Being that the EU is forever redefining trade, eventually the Commission will find a way to make it stick.

The truth of the matter is that there is no longer a clear delineation between EU and national competences. The two are intertwined and while we are in the EU, the EU is the supreme authority. Though Eureferendum notes that there exists a perfectly reasonable and sensible requirement for mail order foods to be kept chilled, we couldn't get rid of it even if it were, as Johnson asserts, "Pointless, pointless, expensive, environmentally damaging 'elf and safety'".

Though one is never going to go to the barricades of fish refrigeration regulations, and this blog recognises the necessity for regulatory harmonisation, it should again be noted that this dynamic applies throughout on all measures over and above trade governance where the parameters of our society, the invisible bars of the cage, are defined by the EU where notionally we have sovereignty, just so long as the exercise of it falls within those parameters. Being that the case, we cannot say we are a democracy until we have left the EU.