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Regulatory alignment, constructive ambiguity and Brexit
One of the great dark arts (to the outsider) of negotiation is the use of ambiguous language. Through careful choice of words, it is possible to carve out spaces within which more than one interpretation is possible.
You might ask why such a thing is desirable, but it’s a function of the world around us. Just as the executioner in Alice in Wonderland was able to make use of such ambiguity when confronted with the Cheshire Cat, so too is it helpful for political agents to use words that leave them with some room of manoeuvre.
As so to the Article 50 negotiations, which hit a block in the road yesterday in part because of language.
The Commission and the British government had made rapid progress in the previous week, following the unblocking of the financial question, but still found themselves stuck on the rocks of the Irish border.
Here the issue is that several apparently-inviolable principles collide with each other. On one hand, the EU must protect the integrity of its Single Market, with associated freedoms of movement for people, goods, services and capital. On the other hand, Northern Ireland and Ireland are bound together through the Common Travel Area and the Good Friday Agreement and a commitment that there should be no hard border - i.e. one with controls – between the two. On the famous third hand, the integrity of the UK also has to be respected.
In the strict readings of these principles, this means no barriers between Ireland and the EU26; Ireland and Northern Ireland; and Northern Ireland and the UK. Which is a problem because UK government policy at present is for the UK to leave the Single Market and Customs Union, both of which imply a need for barriers between the UK and the EU.
This has been evidently a major problem since before the 2016 referendum and that it is only now that some movement was seen highlights the lack of any easy or obvious solution.
But the way forward came in part through ambiguous language.
As the figure below shows, there are different ways you can portray the match between EU and UK systems: having that match would remove one of the major reasons for having a hard border (although not all: customs checks would still be needed).
In the original draft text, the wording was ‘no regulatory divergence’, which carried the implication that both EU and UK would do the same thing, logically by both using the exact same regulatory framework. Put differently, the UK would just copy the EU.
However, by making a switch to ‘regulatory alignment’ a space was opened up: the wording here suggests that it’s about matching regulation, rather than simply copying. As such, it could be argued (as the British government is now doing) that this would allow the UK to set its own regulation, while also avoiding a hard border.
All very clever, except for a few issues.
Firstly, given the need for ‘alignment’, the UK would still be largely cutting-and-pasting EU regulation, since it would have made a commitment to keep the gap small-to-non-existent.
Secondly, any self-respecting EU negotiator (or member state for that matter) would insist on a mechanism to make this alignment meaningful. That means a sanction mechanism, which in turn pulls the EU’s Court of Justice into the fold. Recall that the Court is another major sticking point at the moment. So one might be swapping one issue for another.
Thirdly, there was the more specific DUP concern that this ‘alignment’ might only apply to Northern Ireland, weakening the relationship with the rest of the UK. Of more general concern was that if this was the case, then UK businesses would only need to set up shop in Northern Ireland and they’d have a back door into the EU.
Ironically, in trying to reassure the DUP (and EU) about this not happening, the British government now appears to be saying that this arrangement would apply to the whole of the UK.
Which raises the final question of: why bother? In effect, this would mean the UK was in a situation very similar to Norway: effectively compliant with the Single Market, but without Norway’s more institutionalised role via the European Economic Area (EEA).
The answer to that is, unsurprisingly, about language. The British government remains wedded to its rhetoric about making a break with the EU and it obviously considers that being able to say it’s not in the EEA of more value than the reduction in complicity of an ‘aligned’ system.