Richard North, 25/07/2017  

With Corbyn now coming out firmly to oppose the Single Market (for this week), and the Tories opposing the Single Market, the Guardian's brain is about to explode. For Labour, Barry Gardiner, the shadow trade secretary, sets out the case (or one of them). 

Labour, he says, has been right to say the government must focus on the outcomes rather than the structures. The key, in Gardiner's view, is not to try to fit these political and economic requirements into inappropriate existing bodies such as the EEA or the customs union, but to develop a bespoke agreement based on what both sides need.

Labour, he adds, must evince a positive vision for the future of our country outside the EU. One that is consistent with the leave voters' objectives, without sacrificing our rights and protections, as the Conservatives threaten to do. That vision must also reassure those who voted to remain that the friction-free access into the single market that we have enjoyed for so long can in large part be maintained.

And that is pure, unadulterated fantasy. The idea of developing a bespoke agreement in two years is not and has never been a viable proposition. And then the concept of maintaining "friction-free access to the single market" on the basis of an as-yet unspecified solution, but one which takes us out Single Market, is just absurd.

Even Andrew Rawnsley in The Observer last Sunday has managed to work out that we can’t prepare to leave the EU until we know where we're going.

The Labour stance, therefore, is akin to the very worst of the Tory "have your cake and eat it" madness. It is one that makes no concessions to the real world, and does not even begin to address the problems of Brexit. Small wonder, the Guardian is breaking ranks and arguing that there is "no immovable reason why [the] future must exclude the single market".

The good news is that Labour, for the moment, is not in charge of the Brexit process – and is unlikely to be in the foreseeable future. The bad news is that the Tories are in charge.

Forget about Mr Fox's little chickens and his chlorine washes. They are a distraction. His staff on a reconnaissance mission to the United States last week already ascertained that there is no possibility of a UK-US deal until our settlement with the EU has been defined, and then negotiations cannot start in earnest until exit day.

Fox is only going because his flights are already booked and too many questions would be asked if he cancelled. His cover is that he is attending the first meeting of the UK-US Trade and Investment Working Group "dedicated to strengthening the bilateral trade and investment relationship" between the two countries. The British can stay free of chlorine-drenched chickens for little while longer.

Meanwhile we need to be focusing on the real issues, the ones that are driving policy, even if they're not always in the headlines. In fact, if they're not in the headlines, then that is an indicator that they may be important. And one of those – far more important than has been acknowledged – is regulatory convergence, also called regulatory equivalence.

In my recent blogpost, I set out the parameters and explained why it is that it is not the "get out of jail free" card that some suggest. It is merely a "starter for ten". However, the day previously, the mice had already been nibbling at the wiring, in the form of another academic.

This one is David Collins from the City of University of London, styled as a Professor of International Economic Law. He has been writing in the "Ultra's" comic, the Brexit Central. And here, Collins glibly told his readers:
Contrary to the doom and gloom narrative seen in the mainstream media, there will be no problems with conformity assessment for UK goods entering the EU: since we already have regulatory convergence (and will keep it thanks to the Great Repeal Bill), the EU will not lawfully be able to discriminate against UK goods entering the EU on these grounds. To do so would violate the Technical Barriers to Trade Agreement of the WTO. So there will be no queues of trucks lining up at Dover being denied entry, as many have tried to suggest.
Here we have the "Ultra" orthodoxy, naked in tooth and claw. This is a doctrine which, by all indications, is sustaining Ministers in their belief that we will be able to rely on untrammelled trade with the EU after Brexit. And if you go along with that orthodoxy, you might conclude that, as long as regulatory convergence is established, the UK does not need a free trade agreement at all.

What made this different though is that one of my readers sent Collins a copy of my blogpost on regulatory convergence, inviting comment. And comment he got – which was then passed back to me.

If nothing else, Collins's style is interesting. He starts with the assertion that there is "confusion" on my part and that I make "flawed assumptions", only then address the issues raised. Where I have gone wrong, he maintains, is in thinking that EU law will govern relations between the UK and the EU. But, Collins says, they will not. They will be governed by international law.

This, one has to recall, is from a professor of international economic law. But it doesn't stop it being an absurd statement. International law (certainly in relation to the UK and the EU) does not have direct effect. And neither is this a question of one of the other – EU or international law. In the context of exporting goods to the EU, we will be subject to EU law which, in turn, must be compliant with relevant international provisions.

Interestingly, various aspects of the laws relating to the import of foodstuffs (which I describe in my blogpost) have been challenged at WTO level and have emerged largely unchanged. To that extent, therefore, we must assume that EU requirements, as they stand, are compliant with international law. Certainly, they are obeyed by the many countries which do export to the EU.

Collins nevertheless goes on to assert that "the EU cannot impose arbitrary regulatory barriers on goods in the form of conformity assessment procedures on other Members such as product testing etc". This, of course, is true. But the EU's requirements are not arbitrary. They are produced in accordance with EU, national and international rules, and are applied uniformly to all third countries except where specific derogations apply, granted according to clearly defined rules.

Nevertheless, the man then calls in aid the TBT Agreement – and wrongly so. He tells us that this Agreement specifies that Members cannot discriminate in product regulations where like conditions prevail. On that basis, he avers, "conditions, meaning the regulatory environment, will remain the same after the UK leaves the EU because the UK is not changing its own conformity assessment/testing procedures". This, he says, "is precisely the purpose of the Great Repeal Bill".

However, Collins has fundamentally misunderstood the situation. This agreement to which he refers, and the parallel Phytosanitary Agreement, requires that the EU adopts international standards in preference to its own. But, largely, the EU is compliant with that agreement. The meat inspection code, for instance, is wholly compliant with the OIE/Codex standards.

These agreements, however, do not restrict the EU's ability to set its own entry procedures, and customs rules. Primarily, in the context to which Collins refers, the provisions relating to conformity assessment must be "prepared, adopted and applied" so as to grant other suppliers in WTO members "conditions no less favourable" than domestic suppliers. Furthermore, the procedures must not create "unnecessary obstacles to international trade".

The point that Collins clearly misses here is precisely the point that I make in my blogpost, the one he has supposedly read. The controls imposed on EU and imported products are essentially the same.

The essential difference is that, because controls on Member State products are applied internally, there is no need for checks at the internal borders (between Member States). Because the same degree of control cannot be applied by the EU within third countries, the focus of control shifts to the external border, where the checks are then applied to products before they are imported. There is absolutely no conflict with any WTO provisions.

Despite this, Collins thinks that controls after Brexit, as they apply to the UK, "will remain identical to the way they currently are within the EU, at least for the time being. The only "change", he says, is that the UK will not be an EU member.

This, he adds, "is not a change in the level of scientific risk on meat or any other products, which might justify additional procedures at the border. Any additional regulatory barriers would consequently be arbitrary and unjustified. The UK would promptly complain to the WTO courts and the EU would lose".

What Collins hasn't understood, though – possibly because he is completely unaware of the nature of the controls applied – is that the difference is not in the degree of control, but where those controls are imposed. This is a distinction between internally applied controls and essentially the same controls applied at the border.

Had Collins read my piece properly and understood it, he might have realised this. Instead, he finishes off with a statement that could easily be mistaken for arrogance, telling my reader:
Much of the misinformation going around in various newspapers, especially it would seem The Guardian, results from people not fully appreciating that the EU has international legal commitments which to which EU law must conform.
On the other hand, it would seem, his brand of misinformation stems from his incomplete understanding of the way European regulation operates – and his wrong-headed belief that he knows what he's talking about.

Once again, though, it will be "prestige" rather than accuracy which will prevail with Ministers. And the readers of Brexit Central will happily rely on Professor Collins to fortify their belief systems. Only the tiniest fraction of "Ultras" will read and what they read, they will not believe. It does not tell them what they want to hear.

But again and again, we are able to offer good evidence of the academic community getting it wrong. That is not to generalise and say that all academics always get it wrong. But too many of them are making serious errors, to the extent that they are dangerous. And to that list – the danger list - we must add David Collins.

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