If the UK has been gold-plating EU rules, consider that the EU has already been silver-plating international standards

If the UK has been gold-plating EU rules, consider that the EU has already been silver-plating international standards

Today’s piece accompanies The Life of Laws: Brussels, Brexit and how international trading standards are made, published with a foreword by John Redwood MP.

For two and a half millennia, geographers dreamt of the uppermost reaches of the Nile. From Rome’s conquest of Egypt, Europeans still had to wait sixteen centuries before a missionary first gazed on the source of the Blue; the source of the White Nile would take two hundred years more. Before brave malaria-riddled hulks stumbled past the Mountains of the Moon, what lay beyond the cataracts remained the stuff of mystery and legend. The theorists of Alexandria had to content themselves with pondering the slow drift of the river as it flowed endlessly by.

Something dangerously akin to this exists in Europe’s democracies. Our supposed lawmakers – by which I mean our parliamentarians – are heavily beholden to technocrats for many of the drafts that, briefly, cross their desks. For long years, Eurosceptics considered this to be the fault of Brussels, drafting laws and then passing them down to Parliament to sign off. In fact, the European Union frequently has itself merely been the middle man in global standardisation processes, with higher order international bodies reaching agreements on trade and other standards that the EU merely adjusts and passes on to members of the Single Market. The flow, as it were, has originated from much further upstream.

The problems with this mechanism have been threefold. Firstly, with the growing role of the EU across treaty competences, the Commission has increasingly taken over power from national representatives in these institutions. Today, a country like Norway often has a greater direct role in drafting standards than its EU neighbour Sweden. Oslo has the direct ability to act in its own national interest rather than the EU’s mean, or mode, or median (depending on how EU Council negotiations went).

Secondly, EU institutions have a tendency to gold plate the results. This means that Whitehall gold plating is merely the squaring of the process: perhaps we need to add a new term, and call what the Commission does ‘silver plating’ to clear the vocabulary up. As an example, consider the brouhaha some years back when the UK was able to secure an exemption to bus stairwell standards agreed at international level; there then followed a risk that ‘internal’ EU standards, implementing these rules for manufacturers local to the Single Market, would drop the UK’s opt out.

As further evidence of this problem, it may be worth pointing to an FOI recently back from the Commission. I asked their legal service for a copy of the guidelines issued in relation to making EU legislation compliant with such international agreements. I wanted to check what instructions had been issued for those drafting EU rules to make sure no costly extra burdens were added unnecessarily. It turned out that neither DG TRADE, DG GROW (Internal Market), DG AGRI nor DG TAXUD have any such guidelines. This, I would suggest, is a pretty elementary gap. Nor is it justified: the Commission does have a Vademecum on European Standardisation which even mentions these international bodies, and accepts that the Commission’s role is subsidiary to them. It further references several by name, and expressly states their existence – not its own – is why EU/EEA countries are the biggest users globally of these trade facilitators.

Thirdly, by contrast, countries that are outside of the EU not only have a chance to directly block or modify damaging standards at source and demand a better draft, but they can then export into the EU without the extra burdens, using the simpler international rules rather than the Single Market ones. This can generate a competitive advantage to those exporting into the Single Market.

The existence of these international bodies, and their upstream role in standards making, has long been known to Eurosceptic writers. We owe a debt of gratitude for the innovative exploratory work done by Dr Richard North, placing tabloid-feeding issues like bendy bananas into the true context of organisations such as Codex, UNECE, the WTO, and a host of acronym-laden territories. What is astonishing, however, has been not merely the enduring wider lack of understanding of these processes – I have encountered veteran Brussels-based lobbyists unaware of where the prime drafts for specific standards they were lobbying on were first made – but the long-standing indifference of key parts of Whitehall to those realities.

The FCO’s traditional view seems to have been that the EU is simply a more convenient entity in which to have these standardisation debates. This attitude is not unlike lazily defaulting to the urban corner shop to do every item of weekly shopping, rather than go either to the quality shops on the High Street or to a supermarket that does value-for-money deals. I also strongly suspect that my interlocutories had no profound understanding of what those international bodies do, and that attachments there are considered dead end posts or demotions (a cross between being made Governor of the South Sandwich Islands and being made a logistics officer at the NATO Standardisation Agency).

This presents us with an important lesson. Civil servants who have spent time at these international bodies are precisely those with the core skills that are most needed in many of the areas under negotiation. They need to be tracked down and made full use of; and the posts they have occupied in future need to be given far greater prominence as part of the career planning for relevant Whitehall departments.

I set out to explore some of this in the third of my papers, kindly published by BrexitCentral today. In The Life of Laws, I go back to fundamental basics. Using the case study of how laws have been made on car safety glass, it is even possible to investigate how EU membership can add unnecessary burdens directly to the very industry that has been most vociferous about seeking to remain within the Single Market.

Why is this realm of techno-arcana so important to Brexit planners? Because it is an area where the UK has a great deal to gain. It is a strange turn of events that there is now the prospect of gaining greater veto rights on Single Market rules by leaving the EU, because of all the moves to QMV that have been happening while we have been within it.

As importantly, there is potentially a major shift happening in trade rules. These have been slowly moving from conformity to equivalence, as the United States explores greater engagement with standards organisations. If this trend continues, that means products no longer will have to be identical, just deemed to be of equivalent level of safety or conformity. That is a potentially massive evolutionary jump for international trade, and in particular renders Single Market membership over the next ten years even more of a questionable benefit.

Again, the existence of these higher order rules means that large parts of the UK economy are already export-compliant to the EU. This reduces, indeed widely removes, the threat to most potential Technical Barriers to Trade (TBTs) for UK exports. It also creates opportunities if civil servants and MPs are clued up to the modalities. For any given UK set of standards, it may be that EU institutions have silver plated standards more than is needed for international compliance. British civil servants may then have gold plated the Act of Parliament, most likely to avoid being taken to court by the Commission and being fined a hefty sum for failing to fully incorporate the Brussels version into British law. But by now reviewing a given law and going back to the fountainhead, there is the prospect of burdens being unexpectedly lifted across parts of the UK economy.

This will not be a simple task, and certainly not a speedy one. If it is prudent, business will itself take the lead in reviewing red tape, perhaps even setting up a specialist institute to analyse and lobby for individual changes in UK provisions. There may even be a role for representatives of certain trades unions in this, to develop a degree of wider consensus and buy-in.

That would be for the CBI, IoD, FSB and others to work out. But as we sit on the banks and watch the river slowly idle by, let us today at least be wiser about those white water pastures lying hundreds of miles upstream.