Richard North, 06/12/2017  

No doubt European Commission officials who watched the "urgent questions " on Monday's abortive Brexit negotiations will have come away confused and perplexed. For, if Mr Davis's definition of "regulatory alignment" is one on which Her Majesty's Government now intends to rely, there is no basis of an EU-UK agreement on cross-border trade, much less any rapprochement on the Irish question.

For the purposes of settling a form of words that could form the basis of a commitment to the Irish Government on the border arrangements with Northern Ireland, the phrase "regulatory alignment" has considerable merit, particularly in terms of providing for the "creative ambiguity" that Mrs May sought in creating a text that meant all things to all people.

Here, this term seems at the last minute to have replaced the original Irish demand for "no regulatory divergence", a phrase with little inbuilt ambiguity which would require the regulatory regimes between Ireland and Northern to be kept fully harmonised. The use of the alternative "regulatory alignment" allows for the possibility of "parallel" regimes, without having specifically to state this as a necessary outcome.

The favourable response of both Jean-Claude Juncker and Donald Tusk to the Anglo-Irish agreement which contained this phrase evidently attests to their willingness to live with ambiguity, regarding it as "sufficient unto the day" to allow the Brexit negotiations to progress to phase two. The details could always be thrashed out at a later date.

A particular merit of this approach is that, in its most severe construction, "regulatory alignment" can mean rigorous harmonisation not only of rules and regulations, but also of the entire regulatory regime. That will necessarily include surveillance and enforcement and all the other trappings which would go with a system which seeks to emulate the structure and extent of the Single Market.

On the other hand, used in looser environments, the same term can mean merely an approximation of laws and systems, sufficiently close to allow for different regulatory authorities to rely on mutual recognition. It would not require systems to be irrevocably harmonised.

Precisely that ambiguity would allow a Conservative government to present to its own supporters and the public at large a vision of a relaxed trading system. Some divergence would be permitted and the UK would have the flexibility to approve its own laws. But, for the purposes of the Brexit negotiations, the Commission could be assured that only the strictest application of the term would be considered.

If that was the plan – and it is the only possible way the Commission could have approved it – then it yesterday sustained multiple holes below the waterline, after Mr Davis blew the ambiguity out of the water.

Nemesis came when the Secretary of State for Brexit responded to a question from Yvette Cooper, who asked for clarification of the Government's position. Was regulatory alignment "really important not just for the Good Friday agreement, but for businesses right across the United Kingdom?"

Davis, in turn, referred to Mrs May's Florence speech, asserting that the Prime Minister had "made a very plain case for the sorts of divergence that we would see after we left". She said, or so Davis would have us believe, "that there are areas in which we want to achieve the same outcomes, but by different regulatory methods".

In fact, Mrs May said no such thing – not explicitly, at any rate. In fact, during that speech, she said, "when it comes to trade in goods, we will do everything we can to avoid friction at the border", adding that, "of course the regulatory issues are crucial".

Noting that the EU and the UK shared "a commitment to high regulatory standards", she accepted that, "in any trading relationship, both sides have to agree on a set of rules which govern how each side behaves". Thus, she said, "we will need to discuss with our European partners new ways of managing our interdependence and our differences, in the context of our shared values".

That, really, was as far as it went, although Mrs May did acknowledge that "the decisions we both take will have consequences for the UK's access to European markets and vice versa", an important if somewhat obvious observation.

Thus, when speaking yesterday, Davis was starting to break new ground when, continuing his answer to Yvette Cooper, he said: "We want to maintain safety, food standards, animal welfare and employment rights, but we do not have to do that by exactly the same mechanism as everybody else. That is what regulatory alignment means".

To Antoinette Sandbach, Davis reiterated "that alignment is not harmonisation. It is not having exactly the same rules; it is sometimes having mutually recognised rules, mutually recognised inspection and all that sort of thing. That is what we are aiming at".

Just to make himself perfectly clear, he then told Mark Pritchard that we could leave the single market and the customs union, yet have UK regulatory alignment, by "using things such as the mutual recognition and alignment of standards. That does not mean having the same standards; it means having ones that give similar results".

To Chris Leslie, the Labour member for Nottingham East, he declared that regulatory alignment was "not harmonisation, being in the single market, or having exactly the same rules". It was, he said, "this House exercising its democratic right to choose our own laws in such a way as to maximise our ability to sell abroad. That is how it will work".

Later on, Labour's Chuka Umunna intervened, reminding the Secretary of State that he did not think that keeping the UK overall in the customs union and the single market was the answer. So, asked Umunna, "what does he believe is?" The answer was: "a comprehensive free trade agreement, a customs agreement and all the associated regulatory alignment".

Stephen Hammond asked whether, for the continued success of legal, professional and financial services post Brexit, not only mutual recognition, but UK-wide regulatory alignment with the EU will be necessary, to have Davis declare: "If by alignment my hon. Friend means mechanisms such as mutual recognition, yes, I agree entirely".

Mike Gapes got short shrift when he asked Davis to "tell us the difference between regulatory convergence and regulatory alignment". "One is about harmonisation, one is not", said Davis, picking up the "slightly confused" Lucy Powell who asked whether regulatory alignment was "the only way to deliver the frictionless border". "The simple truth", said Davis, "is that we will need to establish arrangements whereby we get the same or similar outcomes for some areas of industry and service - no more, no less".

Then, having already told Antoinette Sandbach and others that regulatory alignment applies to the whole United Kingdom, Davis was confronted by Stephen Timms, who challenged him to confirm this.

Said Davis, "I have explained to the House that regulatory alignment is not harmonisation. It is a question of ensuring similar outcomes in areas where we want to have trade relationships and free and frictionless trade. Anything we agree for Northern Ireland in that respect, if we get our free trade area, will apply to the whole country".

So, the cat is out of the bag and there is no going back. Essentially, the UK is aiming for what it has always aimed, more or less from the start of the May administration. It wants "a comprehensive free trade agreement, a customs agreement and all the associated regulatory alignment", the latter meaning either mutual recognition or what amounts to regulatory equivalence.

Furthermore, in his haste to pacify the DUP, Davis has confirmed that Northern Ireland will not be treated as a special case – yet despite this still expects a "frictionless border".

Currently (at the time of writing), Mrs May is still waiting to speak to Arlene Foster and her Wednesday visit to Brussels has been cancelled. As far as the rest of the week goes, Mr Juncker has told her that she has the Thursday but that's it.

But, even if by then – or whenever the next meeting takes place – Mrs May has managed to square off the DUP, her Secretary of State has destroyed the Brussels pitch. As now defined, there is no possible way that the "colleagues" can accept regulatory alignment as a satisfactory basis for allowing UK goods free access to Ireland.

Such is the apparent concern of Brussels that the talks should continue, one takes the view that the EU collectively has decided that it is too early for them to fail. We can, therefore, expect another fudge, although the options for "creative ambiguity" are rapidly running out.

What we must not lose sight of though is that this current shambles has demonstrated that the UK government's strategic thinking on Brexit has not advanced one iota. It is still wanting to have its cake and eat it, and still hasn't come to terms with the consequences of leaving the Single Market.

And all of this goes back to the Lancaster House speech, my response to which was expressed in uncharacteristically blunt language. And if that's what we were then, that's what we are now. Nothing has changed.

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