Monday, 19 December 2016

The Great Repeal Bill aka I Am The Law

The Scottish Government will reveal its plan to keep Scotland in the EEA on Tuesday.  Before that happens it seems like a good time to discuss the Great Repeal Bill and how it will impact the First Minster's chances of achieving her goal.  This is quite a tedious and boring post so feel free to skip it but you'll only have yourself to blame if you end up scratching your head at everything that follows after Tuesday.  Quick trigger warning:  there is a picture of a flushing toilet later in this post so look away if that's not your thing.



Over the course of some months this blog has endlessly posted about some of the most dull and boring aspects of the way that the EU keeps the wheels of trade turning.  This has led to extremely uninteresting expositions on the principle of limited harmonisation and mutual recognition, which is achieved by bringing EU Directives into domestic law.   There's also another much deeper level of integration, however, achieved through EU Regulations passed by the European Parliament.  Pretty much anything that can't be left to individual countries to sort out on their own or anything so crucial that small divergences in implementation can't be tolerated is passed as a Regulation.  That might include anything that crosses a border.  Pensions transfers and pilot training spring to mind.  It might also include the handling and transport of toxic chemicals through the REACH Regulation.  In each case the European Parliament legislates to transfer powers to an institution that will provide technical  oversight.  These institutions are, in turn, accountable to the EU Parliament and have formal links with other EU courts and institutions to resolve disputes through arbitration. As a member of the EU, the UK Government is accountable to all of these institutions.  Leaving the EU means cutting the cord of accountability.  It's not hard to imagine the complex matrix of dependencies that needs to be untangled.  This is not trivial.


The UK Government at least understands some of the complexities of leaving the EU. To prevent a legal vacuum on exiting the EU it has proposed to simply bring all EU Regulations into UK law.  This process is known as "The Great Repeal Bill".  Over time Parliament will be able to modify, repeal and replace the mirrored EU Regulations as it sees fit and at a pace of its own choosing. This all sounds great, doesn't it?  Hmm, I'm not so sure.  Let's dive into the detail a bit.

The UK's 3rd largest export to the EU is pharmaceutical products.  Now, the pharmaceutical industry has a rather nasty habit of selling drugs that poison and kill innocent patients. Sometimes it just rips us off and feeds us tablets with zero efficacy.  Mostly, though, it does a pretty good job but that is only because it is a highly regulated market with patient health and safety in mind.  With this in mind EU Regulation  No 726/2004 sets out the powers of the European Medicines Agency.  A short summary of its powers is that new drugs need to be approved by the EMA before they can be sold in the EEA. When the UK leaves the EU it could choose to continue to work under the auspices of the EMA but that comes with accountability to both the European Parliament and the European Court of Justice.  To be honest, I can only guess at the other institutions and courts and treaty agreements that might be involved.   The UK Government will never accept this situation because it doesn't sound like taking back control. What must the UK do?  Well, in addition to the legal text and technical specifications of all Regulations, it needs to mirror all of the courts and institutions in the UK.  Has anyone heard the UK Government budget for this?  That's right, it has simply never been mentioned, even though every single technical institution and court in the EU would need to be mirrored and fully operational by March 2019.  In short, we are heading towards a legal vacuum. In that legal vacuum drugs cannot be certified; hazardous chemicals can't be stored or treated; the pensions market will be frozen; pilots won't be able to take off or land; the Channel Tunnel will be out of operation; sewage treatment plants will no longer be governed by environmental controls.   The most basic elements of the legal framework that control the day to day operation of the UK will cease to exist. 

Even the disposal of "black water" is governed by EU Regulation.
Let's cut the UK Government some slack and imagine that they have a plan up their sleeve to set up all the necessary institutions.  Is that enough? Well, it would mean that a pilot could fly safely from Glasgow to London but not to Paris because that would require certification from the European Aviation Safety Agency.  It would allow safe rail travel from Bristol to Bath but the Channel Tunnel would be closed until certification from the European Railway Agency is complete.  The problem is that the EU will need to formally recognise all of the UK institutions, typically achieved through bi-lateral treaties.  Does that sound like Switzerland?  Yes, over a period of 25 years and 120+ treaties that's exactly what Switzerland did.  This is an ongoing process because every time the EU changes its technical requirements Switzerland has to respond.   If the UK goes down this route it will need to do exactly the same.  If it doesn't the EU will claim the treaty is broken; it will cease to recognise the integrity of UK institutions and the drawbridge will come up.  This is about the right to trade rather than its cost.

Theresa May has gone to great lengths to point out that the UK will have a bespoke deal unlike Switzerland or Norway.  The Norwegian model requires accountability to EU courts and institutions so we can dismiss that because it doesn't tick the "take back control" box.  The Swiss model requires the adoption of bi-lateral treaties that act to harmonise legislation across the border.  For reasons not yet made clear the UK Government have dismissed this model, too.  To be honest, time isn't on our side here so I'm going to dismiss it as well.  There is simply no way that the Swiss model could be configured in the limited time available.  What is the alternative?  The only remaining alternative is to pretend that the EU simply doesn't exist.  Let's all close our eyes, pull up the drawbridge and learn to enjoy picking potatoes.  There is, of course, one other option:  add  the advisory result of the EU referendum to all other available advice and come to the conclusion that the UK is better off in the EU.

Let's turn our attention to Scotland and its goal of staying in the EEA.  Let's also imagine someone who takes up a new job and wants to move their occupational pension from Norwich Union to Scottish Widows.  Norwich Union is based in England so it will be regulated by the fledgling rUK Occupational Pensions Authority.  If Scotland wants to fully remain in the single market then Scottish Widows will be regulated  instead by the European Insurance and Occupational Pensions Authority.  Without a bi-lateral treaty between rUK and the EEA it will be impossible to transfer the pension without the kind of legal vacuum that encourages scams, fraud and tax evasion.  The same conundrum appears if you try to get on a train, board a plane, buy some aspirin, catch a fish, generate electricity, sail a boat, set up a Facebook account or flush the toilet.  We already know that EEA membership for Scotland requires the devolution of almost every power imaginable but in addition it requires the UK to be closely integrated into the EU just like Norway or Switzerland.  I'm not hopeful these conditions will prevail but only time will tell.

Over and out,

Terry

PPS  The right to trade must first be established before discussing its cost.  That's why a EU/UK trade deal can only be discussed after A50 establishes the legal framework of those rights.  This point seems lost on David Davis, who is still banging on and on and on about trade deals.  Utterly useless.

PPS Here is a complete list of EU technical institutions.  Taken from here.

Agency for the Cooperation of Energy Regulators (ACER)
Office of the Body of European Regulators for Electronic Communications (BEREC Office)
Community Plant Variety Office (CPVO)
European Agency for Safety and Health at Work (EU-OSHA)
European Border and Coast Guard Agency (Frontex)
European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA)
European Asylum Support Office (EASO)
European Aviation Safety Agency (EASA)
European Banking Authority (EBA)
European Centre for Disease Prevention and Control (ECDC)
European Centre for the Development of Vocational Training (Cedefop)
European Chemicals Agency (ECHA)
European Environment Agency (EEA)
European Fisheries Control Agency (EFCA)
European Food Safety Authority (EFSA)
European Foundation for the Improvement of Living and Working Conditions (Eurofound)
European GNSS Agency (GSA)
European Institute for Gender Equality (EIGE)
European Insurance and Occupational Pensions Authority (EIOPA)
European Maritime Safety Agency (EMSA)
European Medicines Agency (EMA)
European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)
European Union Agency for Network and Information Security (ENISA)
European Union Agency for Law Enforcement Training (CEPOL)
European Police Office (Europol)
European Public Prosecutor's Office (in preparation) (EPPO)
European Union Agency for Railways (ERA)
European Securities and Markets Authority (ESMA)
European Training Foundation (ETF)
European Union Agency for Fundamental Rights (FRA)
European Union Intellectual Property Office (EUIPO)
Single Resolution Board (SRB)
The European Union’s Judicial Cooperation Unit (Eurojust)
Translation Centre for the Bodies of the European Union (CdT)

4 comments:

  1. The complexities are enormous. Certainly, your average voter had absolutely no idea what he/she was voting for. Thanks to the cat litter press, they thought that basically they were voting for Blue Passports, getting rid of all foreigners and English courts for English laws. Bummer.

    It would be hard to underestimate the intellect of David Davis and Liam Fox combined.

    No, no, no, sorry, a slip of the fingers there... I didn't mean that, I meant it would be WRONG to underestimate it.

    In their four hands, with the probable addition (on the quiet) of the two hands of, Adam, Mr Fox's best mate and confidant, and a good dose of British values, I'm sure that that amalgam of intellects will save the day for St George, Harry and England... and that the European dragon will lie slain at their feet ere March 2019.

    The problem of Scotland is altogether more difficult.

    Alas, we have no Fox, no Werrity and no Davis to erm, err, sort all these issues out for us. And as that towering Scots intellect, Murdo Fraser pointed out, Scottish politicians are completely lost on the world stage. (And he should know. He's a Scottish politician of sorts, and he get lost going to the bathroom.)

    It would seem that a deal with with EEA could throw up some enormous challenges that, even were these three towering intellects onside, we should have problems sorting.

    The worrying thing is that independence within the EU would throw up these same problems of trying to set up deals with British institutions that wouldn't even be set up by then anyway!

    I wonder if anyone has thought through how that will affect Northern Ireland, given its very special relationship with Eire.

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    1. Independence will be extremely complex, especially with the unfolding Brexit saga. You're quite right there. My instinct is that EEA membership is more complex in the sense that there is no realistic path to making it happen. It just requires too many other parties to agree to it. Independence, on the other hand, has a clear legal precedent. That solves most of the problems that would otherwise require significant political will.

      I don't think anyone has a proper plan for NI. Or Gibraltar, for that matter. These are huge issues to add to a very long list. The UK Government have no formal plan for anything so expecting them to have thought about NI is a bit of a pipe dream. It is genuinely worrying that they are diverting attention to trade deals in order to get headlines, while the right to trade (or even function) at all is under threat.

      Looking forward to the Scot Gov proposal. I do feel that they understand the issues, at least.

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    2. There's certainly a precedent for independence, but still trade between and independent Scotland and the UK would be very complex unless the UK were to join EFTA. Norway has open borders with Sweden and Finland and that seems to work well. But then Norway takes foreign labour and the UK cannot afford to do that. A fair amount of the Leave vote was predicated on getting rid of foreigners.

      I think they need to look again at the Greenland Agreement and see what they can learn from it. Greenland isn't in EFTA, but partly through its association with Denmark, and partly becasue of its agreements with Brussels, it has concessions on trade and movement of people with Denmark

      Despite the ridiculous ninety something percent vote to stay, in Gibraltar, I reckon the UK can largely ignore its demands. Of course they will have to make up for the produce that would normally come from Spain, and presumably the labour that comes from there too. But it's a tiny place , at some distance and no one on the Uk mainland gives it a second thought. Most didn't even know it was IN the EU.

      Northern Ireland they WILL have to find a solution for. Not that they care about NI, but if they don't do something, I suspect that Ireland might be hard to persuade when it comes to any kind of co-operation in Brussels.

      Additionally, the affect on the Good Friday Agreement is an issue they ignore at their peril.

      If NI gets a special deal and Scotland does not, despite the size of the majority against leaving, I can see deep dissatisfaction resulting.

      I think that they say very little because they simply don't know what to do.

      I'm beginning to wonder if Davis and Fox were the only people who would take these jobs, May having tried some slightly brighter people who replied... Not on your nelly, Tessy!

      Davis had never had a cabinet job and time was running out for him, and of course we all know that Foxy was disgraced and for quite a serious reason. His chances of a return were pretty negligible.

      I look forward too to seeing what Edinburgh has to say. The FT said it was the first serious plan in the whole Brexit affair.

      I look forward too, to your analysis, oh learned one.

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  2. It certainly would be complex. Everything hinges on the level of integration that the UK would seek to retain. Right now, that seems like a very low amount of integration, perhaps no more than some security arrangements and an agreement about the Channel Tunnel. This doesn't bode well for Scotland.

    I think you're right about Gibraltar - just forget about it because nobody really cares. I suspect that is the attitude they take for Scotland and NI as well. Their priorities seem to be discussing foreign trade, work groups about foreign trade and headlines about foreign trade. You're also right that the UK Gov is wrestling with these very complex issues but can't seem to agree on a political goal, never mind a technical solution to it. It seems that they fail to understand the political consensus in the EU - there is a bigger social and economic picture than just selling some widgets in the short term.

    I'm also looking forward to the first actual plan of any seriousness at all. Six months have passed and all we've had are platitudes about the colour scheme of Brexit.

    Straight off the top of my head an issue that needs resolution is freedom of movement of people. Imagine for a second that Scotland stays in the EEA and I decide to go to live across the border in Austria. How will I convince the authorities there that I am Scottish and therefore am entitled to work and live there? I can't think of a way around that.

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