This article is part of a Brexit Institute Blog Series hosting the comments of scholars on “Brexit and the UK Political and Constitutional Crisis”. See also Asif Hameed, Brexit and the UK Political and Constitutional Crisis: the Fixed-term Parliaments Act; Philip Cunliffe, Brexit and the UK Political and Constitutional Crisis: The Europeanisation of British Politics; Tara McCormack, Brexit and the UK political and constitutional crisis: the responsibility of the British Parliament; Jack Simson Caird, Brexit and the UK Political and Constitutional Crisis: Prorogation and the Case for Constitutional Reform;
Brexit and the UK Political and Constitutional Crisis: the Impossibility of Avoiding EU Law
Elaine Fahey (City University)
The Global Reach of EU law is not a phenomenon that has achieved any notoriety during the Brexit negotiations. However, it is an increasingly well-known academic proposition that the laws, rules and standards governing the single market constitute homogenous regulation for a vast range of subject areas governing a bloc of half a billion consumers and traders.
A ‘level playing field’ of UK laws to be aligned in substance with EU rules is a core principle of the draft EU-UK Withdrawal Agreement.
It goes without saying that although the UK on exit day begins from an extremely high level of alignment. This can radically change in a no-deal Brexit. But does it really matter? The new UK Prime Minister has recently very explicitly and directly written to the EU stating that the UK will not seek alignment with EU rules and the place of a no-deal has been ratcheted up in a significant number of ways in September 2019. Much of this relates to the difficult position of the negotiation of Backstop.
In early September 2019, a team of six British officials, led by Johnson’s chief negotiator David Frost, proposed radically diverging from EU law going forward by ‘gutting’ the draft Withdrawal Agreement contrary to the all-island economy and North-South cooperation in the Joint Report of December 2017. Out would go all the measures ensuring frictionless trade, no regulatory or customs checks, protecting the all-island economy and North-South cooperation. However, as is well known, Boris Johnson has indicated in early September that he does not want such a close relationship, at least not one so close it would solve the border conundrum and align so closely with EU law.
However, the broader point is how much non-alignment with EU law is genuinely attainable going forward?
It is worth pausing here to consider the concept and significance of the global reach of EU law and the internal market. EU law has become sufficiently desirable that many third countries adopt them as takers; alternatively, traders, businesses, companies, associations, countries receive them or are subjected to them, compelled to or otherwise. It encompasses the perceived ‘spillover’ effect of EU regulatory standards on US rules in the realm of, inter alia, genetically modified foods, data privacy standards and chemical safety rules (‘The so-called Brussels Effect’); the extent to which EU legal rules are actually transplanted in the US: for example, the transposition of EU environmental standards in California, Boston and Maine (‘From Brussels with Love’). The incorporation of EU vehicle emissions standards into Chinese and Japanese law or EU makeup standards in Malaysia are all part of the phenomena of the global reach of EU law.
Research has shown that EU trading partners do not necessarily converge with EU law or precisely align themselves to EU law. Yet deeper recent trading agreements with the EU such as CETA with Canada, JEEPA with Japan etc have seen the EU seek stronger formulations of unequivocal alignment with EU law with regulatory cooperation regimes. All new generation trade agreements of the EU have strived for deeper regulatory alignment. Put short, it is not straightforward to say that a partner of the EU in trade must take its laws However, it is certainly the case that many others who are not technically ‘partners’ want to avail of the advantage of half a billion consumers and businesses having the same rules.
93 areas are listed in Brexit ‘preparedness’ notices published by the European Commission in 2019 and span 62 non-legislative acts and 19 legislative proposals and 3 communications as of August 2019. These span an immense range of areas (goods, food, feed, plant, vetinarary, customs, financial services, civil justice, IP, transport, digital, energy and climate). The range of areas is on one view a good indicator of how in so many core fields of EU law global reach is the essential starting point for a new regulatory landscape in the UK.
At the end of the day one of the most interesting features of the global reach of EU law is its often voluntary nature. It differs from the status of requirements demanded of a formal third party in a trading agreement with the EU. Many producers, suppliers and distributors may simply elect to comply with two sets of regulation, EU and UK- in order not to annihilate their own markets. The capacity of traders and businesses to voluntarily adopt rules cannot be underestimated. However, this is not to overstate the challenges of this for smaller enterprises, SMEs, entities with limited additional capacity to subsume new customs declarations, paperwork or formulae.
Ultimately, it will be hard for the UK deal or no deal to avoid the force of the global reach of EU law. The fruits of half a billion consumers and thousands of businesses following a uniform set of rules is too lucrative, attractive and straightforward to ignore.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Elaine Fahey is Professor of Law at City Law School, City, University of London