Richard North, 21/04/2019  

One of the most misleading mantras to find its way into the general Brexit discourse is the assertion that, outside the warm embrace of the European Union, the poor, impoverished and weakened United Kingdom will have "no say" in the making of the rules which govern international trading.

To make such a statement, unequivocally – i.e., without any qualification – simply transforms it into a meaningless slogan, useful for the gullible but really a hopeless waste of time when it comes to understanding how the global system works.

Crucially, though, the real issue is not the balance of power between the EU and the UK. This is something we addressed in formulating The Harrogate Agenda (THA). In actuality, powers in the hands of either Brussels and London represent an unhealthy degree of centralisation that puts law-making outside the reach of ordinary people.

Yet, even in pursuit of the most perfect form of democracy – whatever that might be – I would not aver that ordinary people should have the power to make laws. The process of law-making requires specialist skills and capabilities that rest, rightly, with dedicated legislatures. Rather, ordinary people should be able to approve the laws made on their behalf.

The interesting thing here is the necessary use of the plural form, "legislatures". In no democratic society or system could one countenance a single legislature. A guiding principle should be one of diversity, a multi-tiered system with laws being made at the lowest level practicable.

But that begets another, and quite obvious, principle – that law will necessarily be multi-tiered. There will be laws which quite naturally apply at international, national and local level – or even a multiplicity of local levels, from region, district and parish.

In this, one of difficulties we face is in defining the boundaries, much of which relates to the degree of mobility within society. A classic example is the weights and measures system. In more primitive societies, there would be multiple definitions of even basic measures, but as trading communities expanded it became more and more necessary to standardise over wider areas.

The advance of metric is a case in point, but it also points up some of the infelicities of standardisation. Opponents of its universal use would argue that there is no reason why there should not be a two-tier system, with traditional units used locally and in oral culture.

At this point, the definition of boundaries is one of the central issues – one at the heart of the Brexit debate. But it can be a false debate. In some respects, it doesn't really matter who makes the laws. Furthermore, the detail of those laws might be irrelevant. In some instances, it may be more important that there should be laws, and that they should be adopted universally.

An excellent example of this is GHS, the Globally Harmonised System of Classification and Labelling of Chemicals. Looking at it from the perspective of international traders in chemicals, none of them will dispute the need for hazard symbols on their packaging, and there is no cost implication in requiring them. They would have to be provided anyway.

What traders do need, however, is consistency and predictability. They want to be able to package their goods and dispatch them to customers anywhere in the world without finding them held up on some obscure dockside, because of non-compliance with some arbitrary local ordinance. A universal law gives them that – the law creates the freedom to trade.

This brings us to another important area. So much of our technical law, effectively, makes itself and is largely uncontroversial. In that context, I am fond of citing the legal definition of jam, and the requirement for a minimum sugar content. This, in fact, is defined by the laws of nature – more specifically microbiology. The sugar content is defined by the level required to suppress fungal growth.

As it happens, the jam "law" was defined by Codex Alimentarius, only to be adopted by the EU and then to be translated into UK law. But, as I have pointed out many times, we would have adopted a very similar law even had we not joined the EU. And, when we finally leave the EU, we will keep this law and many like it.

In terms of technical law – effectively, our international trading rules – largely, these will continue to be made in much the same way that they are at the moment, by global bodies of various description. Where they go through the process of being adopted by the EU before being applied downstream, there is little flexibility to change them through the legislative system.

After many years of deliberation through the global system – with inputs from a huge variety of sources – when a standard arrives in Brussels, it is turned into a COM(final) by the Commission and is then presented to the European Parliament and the Council of the European Union (Council of Ministers).

In the parliament, there is a great deal of grandstanding when it comes to amendments, but very few of these survive and most are rejected by the Commission. Some minor changes, seen as improvements, will be accepted. But, if the parliament pushes its luck, the Commission will "pull" the law and resubmit it at a later date.

As regards the Council, by far the bulk of the laws going through the system are agreed between officials to become "A points" which are approved automatically by ministers without discussion or a vote. The few that get past this level are largely QMV, and are rarely opposed, being agreed by consensus.

In effect, once a proposal for a law reaches the Commission, it is largely cast in stone. From thereon, there are all sorts of rituals in place to give the impression of debate, but in truth, no one really has a "say". The die is already cast.

In my view, this really doesn't matter. Again, I've said many times that I'm not going to be manning the barricades over the percentage of sugar in jam, or the many other technical standards to which we are bound. We are, I rather feel, looking in the wrong place.

So very often in the process of law-making, at whatever level, we make laws without any real idea of the consequences. Most of the time, that isn't a problem because there are few adverse side effects, or those effects are tolerable.

What does matter – again in my view – is when unacceptable consequences materialise and there is a need to change the law, or mitigate its effects. In an intergovernmental system, that is quite possible.

In most systems, a nation can simply opt out, accepting the consequences of that decision. But, in the supranational system of international governance that defines the European Union, that is not possible, The system is change-proof, guarded by the Commission – the guardian of the treaties. And that is why our membership of the EU is so objectionable.

That said, many of the international laws to which we are already bound are not likely to change in the foreseeable future. The fact that we had "no say" in them when they were made is of little importance. We've lived with them for many years so we can afford a few more years.

The day before the referendum, I wrote a piece entitled "correcting an historic mistake", in which I suggested that Brexit would not mean us leaving "Europe" – nor even travelling in a markedly different direction.

To that effect, I conjured up an image of multiple trains travelling on roughly parallel tracks. Each would be free to travel at its own speed and to stop at stations of their choice. Some may share the same destination, others may not. Still more may share part of the journey, diverging only as they travel on to reach their final destinations.

In an ideal world, the day after Brexit should be no different from the day before we left the EU. Initially travelling down parallel tracks, only gradually would our paths diverge. And even then, as we share many values and objectives, in many policy areas our divergencies may only be slight.

As we get used to this, we can build on our strengths and project our voice onto the international stage. But it is never going to be the case that we are going to dictate the international laws which define global trading. And it is hard to lament the loss of "say" when we had very little in the first place.

What we will need to do is find out – and for many, for the first time – how the international system actually works and how best to influence it. That - much to the chagrin of many Europhiles whose knowledge of the system is embarrassingly slender – does not involve throwing one's weight about in the couloirs of Brussels.

Rather, it requires a more nuanced approach which some of our neighbours have mastered better than have we. We can bleat about "no say" but our lack of voice will be the least of our problems. First, we must learn what we need to say, to whom and how.

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