Brexit: treaties for dummies

28/02/2020

It was a matter of singular ill-timing that, at the very moment the Johnson administration produced its own White Paper setting out its negotiation mandate on the forthcoming "future relationship" talks, the UK's Appeal Court issued its judgement on the government's approval of a third runway at Heathrow Airport.

On the one hand, we have the stern declaration in "The UK’s Approach to Negotiations" that, "Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political Life".

On the other, we have a British court ruling that the government's action on Heathrow is "illegal" (actually "unlawful") in that it produced its Airports National Policy Statement (ANPS) without taking into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015.

Specifically, the commitments on climate change require that the reasons for the policy set out in the ANPS "must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change".

Thus, we have a very clear instance of where the government is not master in its own house, having to defer to provisions of an international treaty, duly signed and ratified. As per the Vienna Convention on the Law of Treaties (Article 27), a party (in this case the UK government) "may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

In that context, the Johnson administration's search for "a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another's legal autonomy and right to manage their own resources as they see fit", is something of a chimera.

Through innumerable international treaties, of which the Paris Agreement is only one, the government has ceded its legal autonomy and is bound by the provisions to which it has agreed. Insofar as sovereignty is involved, as long as the government retains the power to cede from, or otherwise abrogate an agreement, that elusive quantity is upheld.

It is quite remarkable however, that the entire media corpus has seemingly failed to put two and two together, and remark that the Heathrow judgement shows the government to be chasing after a fantasy in respect of the forthcoming EU negotiations.

Every single international agreement of any substance – and certainly a "future relationship" agreement with the EU – will to an extent curtail the government's "legal autonomy" (I think they actually mean "legislative autonomy"). To demand a treaty that has no impact in this respect is to ask the impossible.

Looking at the government's White Paper in the round, Pete has produced a useful analysis which goes some of the way in identifying specific flaws in a poorly framed strategy. Amongst other things he points out, "if you want total regulatory independence, don't live directly next door to the number one global regulatory superpower".

Yet it is that drive for regulatory independence which seems to dominate the White Paper, with an almost plaintive plea that the EU should accord the same terms found in the EU-Canada Agreement (CETA), without apparently having a very clear idea of what is involved in that Agreement.

No more is this so obvious as when it comes to the government's strictures on Sanitary and Phytosanitary (SPS) Measures. There it not only wants to "build on the WTO SPS Agreement in line with recent EU agreements such as CETA", but it also calls in aid the EU-NZ Veterinary Agreement, looking for an equivalence mechanism.

One is almost embarrassed for the government, by the sheer amateurishness of its approach. One squirms inwardly, praying that our negotiators really are not as gauche as this document indicates, and that they are far better informed than its authors.

When it comes to CETA, therefore, one hopes that they are familiar with Annex 5-D, which sets out "guidelines to determine, recognise and maintain equivalence". There, they will find that the criteria for the determination and recognition of equivalence are "to be agreed at a later stage".

In other words, there is no formal recognition of equivalence in CETA. As far as exports to the EU are concerned, as Canadian meat producers are finding, "equivalence" means full conformity with EU requirements.

As to the references to the EU-NZ Veterinary Agreement, this really shows up the amateurishness of the UK approach. There is indeed an allowance for "equivalence" between EU and NZ law, but it is not equivalence as we know it - and definitely not something our producers would be particularly happy about.

What it means in practice is that New Zealand has, in theory, the freedom to make its own domestic law in any way that it pleases. But, when it comes to exporting animal products (which is the substance of the Agreement), it must accommodate all the requirements set out in EU law.

Inasmuch as it is extremely inconvenient (and expensive) to produce to multiple legislative codes, the way New Zealand achieves this is by shadowing EU law – even to the extent that every time the EU changes its law, NZ enacts new laws to include the new requirements.

Thus, the "equivalent" law is only equivalent as long as it shadows EU law, and even then animal products still have to be submitted on entry to the EU to a BIP (BCP) for inspection, albeit at a reduced rate, with reduced inspection fees.

Basically, goods to be exported to the EU must satisfy a regime of domestic law plus EU add-ons. Producers thus have to conform to the baseline NZ law, but to that are added more detailed (mandatory) requirements, laid down in what are called the EU Overseas Market Access Requirements (EU-OMAR) – the details of which are actually confidential.

It is not the case, therefore, that NZ domestic law is regarded as "equivalent". The local laws are modified and added to until they have exactly the same effect as EU law. And, in any event, there is certainly no question of mutual recognition. The EU effectively converts "equivalence" into meaning "the same".

These small examples, however, illustrate the difficulties in properly critiquing the government's efforts. The devil, as always, is in the detail – a level of detail which is not only far beyond the capability of the media, but outside the scope of most of the self-appointed "experts" which form the favoured claque which feeds the media.

Another example is the White Paper's views on the UK and the EU establishing a Bilateral Aviation Safety Agreement (BASA). This, the White Paper says, " will facilitate the recognition of aviation safety standards and regulatory cooperation between the UK Civil Aviation Authority (CAA) and the European Union Aviation Safety Agency (EASA)".

But what this doesn't recognise is that the UK's system of aviation safety regulation has largely been dismantled, as authority has been ceded to EASA. Thus, the UK aerospace industry body ADS, has said it would take approximately 5-10 years for the CAA to rebuild its safety regulation capability to take over from EASA.

That the UK can therefore stand as a "sovereign equal" with the EU, with the "right to manage their own resources as they see fit", is sheer wishful thinking. In aviation and in so many other areas, we have lost much of our domestic legislative capabilities and are entirely reliant on the EU to manage our legislative processes.

But most of all, as we see from the White Paper – with its references to the WTO's TBT and SPS Agreement, to the World Customs Organisation (WCO) and even the WP.29 UN Regulations hosted by UNECE, for vehicle safety and environmental protection – a huge amount of what we implement in this country is already determined by international agreement, handed down via the EU.

In terms of chemicals, the White Paper even talks of cooperation between UK and EU authorities, including on implementing the Global Harmonised System of Classification and Labelling of Chemicals – which is, of course, a UN initiative, administered by UNECE.

In future, international agreements are still going to dominate our regulatory processes, and in regaining our notional "independence", we are increasingly going to discover the "double coffin-lid" phenomenon, as we find that many of the apparent EU provisions have been established at a regional or global level.

An almost complete failure of the White Paper to recognise or understand this dynamic rather illustrates that the Johnson administration is out of its depth. With the likes of Johnson having spent years railing against "EU Rules", he and his fellow travellers have simply failed to realise how much the world has moved on.

When we have Gove, therefore, telling us that, "As a sovereign, self-governing, independent nation", we will have "the freedom to frame our own laws …" and "determine our own trade relationships", he is in cloud-cuckoo land.

Yet these are the dummies who are set to negotiate a new trade treaty with the EU. They haven't a clue, and the EU negotiators will take them to the cleaners. It looks as if our lot have some reading to do (illustrated).