Regulatory alignment


9 December 2017

I’m sorry, but this post is for the nerds, as it applies a fine-tooth comb to a single clause of the Joint Communiqué which Donald Tusk and Theresa May presented yesterday morning. The purpose of the blog is to explore the Communiqué’s treatment of “regulatory alignment”. Although much ventilated earlier in the week, the phrase does not occur in the Communiqué itself. Nonetheless Clause 49 alludes to it in connection with Ireland, giving rise to feverish speculation and calling for this commentary. At issue is whether May has yielded substantively, with the effect of abandoning whatever benefits might come from leaving the Customs Union and the Single Market. These would be trade deals with third parties on goods and service respectively, as well as control over our borders. To form a view on this, let’s see how the clause shakes down.

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Communiqué text
49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements.

Comment
Ostensibly, this preamble is forcibly expressed…

“…overarching requirements…guarantee of avoiding a hard border.”

…but it is then weakened by the following sentences which give it effect.


Communiqué text
The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship.

Comment
This expression of the UK’s “intention” reflects its longstanding objective of a “deep and special relationship”. The EU, however, regards this as vague, so the agreed text is correspondingly weaker than a joint commitment.


Communiqué text
Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland.

Comment
This is compromise text, reflecting the earlier back and forth.

The EU gets language which confirms that it is for the UK to propose a solution.

The UK gets wording which recognises Ireland’s “unique circumstances”, intended to avoid hostages to fortune in future negotiations.


Communiqué text
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

Comment
The topic of regulatory alignment is now relegated to this single expression, as the third and least likely option, to be invoked “In the absence of agreed solutions”. This raises two points.

a) No-one engaged in good-faith negotiation wishes such a condition to occur. Nonetheless, no deal cannot be ruled out.

b) If so, the communiqué itself is destined to become a dead letter, either under the convention of EU negotiations that “nothing is agreed until everything is agreed”, or as a matter of straightforward political reality.

Those of a Jesuitical or Rabbinical cast of mind will recall that at the beginning of the week, there was much contention between “no [regulatory] divergence from…” and “full [regulatory] alignment with…” Settlement upon the latter offers every excuse to parse the restrictions upon the obligation to “maintain full alignment with those (my emphasis) rules of the Internal Market and the Customs Union which...support..."

       “…North-South co-operation… and the protection of the 1998 Agreement”.
                 which may mean anything or nothing.
      “…the all-island economy…”
                 which sounds absolutely comprehensive, but actually refers narrowly to agriculture and electrical power networks.

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To conclude, Clause 49 displays a certain amount of compromise and a certain amount of fudge. Nothing, however, supports the wishful thinking in the ether, that soft Brexit is now guaranteed and that third party deals are off the cards. To the contrary, all is still to play for and as you might expect, negotiating the fine print will be hard pounding.