Richard North, 11/04/2018  

Michel Barnier was in Brussels yesterday, addressing a European Parliament group called "Green 10", giving a speech entitled: "Is Brexit a threat to the future of the EU's environment?"

This reflects uncertainty on the part of the EU institutions and the Member States as to whether the UK will stay close to the European regulatory model or distance itself from it.

The EU itself prides itself on maintaining a regulatory framework that, in its terms, "is underpinned by key choices that are dear to us": the social market economy, health protection, food security, fair and effective financial regulation, and high levels of environmental protection.

Understandably, the Europeans do not want to see us cut standards, not least because it will give us a competitive advantage. They are thus looking for parity in terms of state aid, guarantees against tax dumping and social standards and environmental standards.

Nevertheless, it is more than a little presumptive to suggest that the UK is going to sink into a environmental pit just because it is leaving the European Union. As a nation, we have been the pioneer in developing environmental legislation, with laws in place before many countries in Europe actually existed.

However given the rhetoric of the Tory right wing, anything is possible and one can understand a certain nervousness on the part of the Commission. They cannot be certain that the UK will, voluntarily, maintain standards for all time.

From Barnier's speech, though, it now appears that the EU is not prepared to leave things to chance. Referring to the UK's need to conclude a post-Brexit trade agreement, the EU's chief negotiator is stating that "there will be no ambitious partnership without common ground on fair competition".

Thus, in any future relationship, the UK will have to commit to no lowering of the standards of environmental protection, to which effect the trade deal with the EU will have to include a non-regression clause, preventing any reduction of the key pre-Brexit standards. Furthermore, there must be provisions for the effective oversight and enforcement of environmental rules.

This, Barnier said, "is needed to ensure the confidence of citizens and companies in the fairness of the future arrangements with the UK".

Even then, the EU is not relying just on any local agreement. It too has discovered the "double coffin lid" of global standards, with Barnier noting that the UK "is a party to many international environmental agreements".

At the moment, he says, "it often meets these obligations on the basis of EU rules", but once it has left the EU, "we expect the UK to continue to meet these international obligations".

For a "concrete example" of this double coffin lid dynamic, Barnier offers the Paris Climate Agreement. Both the EU and the UK have ratified this and he argues that both "should continue to promote the global solutions to climate change which the Paris agreement offers".

The UK, he says, has always pushed for strong global action and high emissions reduction targets and thus the EU expects that it will continue to set itself the same level of climate ambition after leaving the EU. "This", says Barnier, "will also open the way for practical cooperation between us".

For a second example, he offers the United Nations Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. In line with this convention, "the EU and the UK will also need to cooperate on the management and conservation of around 100 shared fish stocks to ensure their long term sustainability".

Then a third example covers the Bern and Ramsar conventions on the protection of birds and other migratory species. These underpin the EU's Habitat Directive and the UK will be expected to keep its own rules in line with the provisions.

Coming out of the blue, this represents an escalation in the EU's moves to tie the UK close to its apron strings after we have left. It is one thing demanding that the UK maintains parity with the EU on trade-related standards, but it is quite another requiring the UK to maintain conformity with international standards across a much wider spectrum. That, in some respects, neutralised the advantages of Brexit – for instance by preventing the UK opting out of climate change targets.

Perversely, though, this situation only arises because the EU is able to exert leverage over the extent of the free trade agreement which it will conclude with the UK. Had the government immediately opted for continued participation in the EEA, the EU would have had less opportunity to load the dice.

As it is, the EU is notorious for what is termed "conditionality" – slipping in non-trade requirements into trade agreements, as a condition for opening up EU markets. Often relating to human rights, there is internal pressure for the EU to include "green clauses" in trade deals, with the talks with Japan, Australia, New Zealand and Mercosur all earmarked for this treatment.

It should be recalled that Commission President Jean-Claude Juncker declared in his 2017 State of the Union Address that: "trade is about exporting our standards, be they social or environmental standards, data protection or food safety requirements", adding that, "open trade must go hand in hand with open policy making".

With Juncker also insisting that "we are not naïve free traders" and committing Europe to defending "its strategic interests", it stands to reason that the Union should carry over this philosophy into the Brexit negotiations. And, with Mrs May taking us out of the Single Market, we have walked "eyes wide shut" into a trap of our own making.

For the government, the situation isn't particularly helped by the intervention of the CBI with a new 114-paqge report entitled "Smooth Operations".

Compiled through consultation with hundreds of businesses of all sizes – from architectural firms to zoos – the report "takes a sector-by-sector look at the EU rules that matter to business" and concludes that, while there are opportunities for rule changes and ways of regulating better within current frameworks, opportunities are limited and are vastly outweighed by the costs that will be incurred if the UK's rules change so much that it reduces smooth access to the EU’s market.

This constitutes a powerful plea for continued regulatory alignment, although somewhat weakened by the CBI's suggestion that the UK should continue to have a say over the rules through the EU's agencies – participation in which, it avers, will give us the "control" that the referendum was about.

One has to observe here that the CBI really doesn't "get" Brexit. But in representing UK industry with a plea to remain in lock-step with the EU over regulation, it cannot help but support the EU in pursuing its agenda.

This is especially the case when it argues that "businesses do not have the capacity to manage significant legislative changes at this moment in time and generally perceive EU regulation to be good regulation".

Gradually, through such means, we see the UK's options being closed down as the EU's grip over the Brexit process tightens, so much so that it is getting harder and harder to distinguish the difference between membership and the half-life we have on offer.

While we had a chance of making a clean break via the Efta/EEA option, that chance is fast evaporating and Brino (Brexit in name only) becomes closer a reality by the day.

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