Richard North, 11/07/2018  

For over a decade I have been using the UN Economic Commission Europe (UNECE) as an example of a producer of global standards, illustrating how rule-making has gone up a level, turning the EU into a rule-taker.

This is particularly the case with the World Forum for Harmonization of Vehicle Regulations (WP.29), a working party which is administered by UNECE. It produces regulations for vehicle construction which the EU then adopts as harmonising measures, covering all aspects of vehicle safety, including crash testing standards.

This then means that vehicle manufacturers which want to trade in the EU (and the Efta states) must comply with regulations. Only then can they gain the coveted "type approval" which is their license to sell their products in the territories of the EU/Efta Member States.

There are actually two levels of regulation. There are those produced under the 1958 Agreement, to which there are 52 contracting parties. Currently, there are 127 regulations (termed UN Regulations) appended to the Agreement. Under the separate 1998 Agreement, to which there are only 33 contracting parties, procedures are laid down for producing what are known as Global Technical Regulations (GTRs), currently eleven in number.

The EU, which is a contracting party to both these agreements, adopts both types of regulation, giving preference to them in its law, having replaced their own. Yet, within the narrow constraints of the Brexit debate, the idea of the EU being afforded the status of a rule-taker rather rains on the parade of those who seek to cast the UK in a similar role.

This has special relevance in respect of the argument about the UK remaining in the EEA. The claims made by the opponents of this option is that, from having the ability to participate in the making of law while we are in the EU, we drop out and end up having to accept EU law with no say in their making.

However, as illustrated by the UNECE WP.29 example, far from becoming a passive rule-taker, we take back our independent vote in the working party and thus have a direct say in what regulations are adopted at the global level. Their position, therefore, is reversed. The UK becomes one of the rule-makers and the EU becomes the rule-taker.

This is the scenario which I had sketched out yesterday, representing uncomfortable reading for those who want to insist that the UK is weakened by staying in the EEA. And one of those is former Labour activist, now turned vehicle safety campaigner, David Ward. He has recently banging the drum about UNECE, asserting that our post-Brexit position will be substantially weakened.

With that in mind, on his own blog, in a post dated 7 June of this year, he confronts one of the central claims of the leave campaign - taking back control. Interestingly, Ward cites Mrs May's Mansion House speech.

In that speech, he states, Mrs May argues that many EU product rules "are underpinned by international standards set by non-EU bodies of which we will remain a member – such as the UN Economic Commission for Europe (UNECE), which sets vehicle safety standards". This, according to Mr Ward means that Mrs May is implying that, by going global, Britain has nothing to lose.

Enter then the heroic David Ward, who grandly declares that Mrs May's argument "displays woeful ignorance of the reality of rule setting in the UNECE which is dominated by one large block of nations – you've guessed it, the EU".

Ward acknowledges that WP.29 is an important global standard setting body, claiming 54 rather than 52 parties to the 1958 Agreement. At its meetings in Geneva, he says, about 38 governments usually attend including EU Member States but with a crucial difference; the EU vote together as a block of 28 countries.

Then, according to Ward. decisions in the World Forum require a four-fifths majority but this is easily achieved by the EU. So, he says, "Therese May got it backwards; it is EU decision-making that underpins the adoption of UNECE regulations and not the other way around".

The most neutral way one might couch a response to these assertions is to say that some of the facts are not correct. For a start, the "four-fifths majority" figure that Ward cites does not apply to the approval of regulations. According to the 1958 Agreement this applies only to the proceedings of the administrative committee when they consider whether to admit a draft regulation (or amendment) for consideration.

Then, according to the so-called "Blue Book", new UN Regulations and amendments to existing UN Regulations are established by a vote of two-thirds majority of Contracting Parties present and voting. But it does not enter into force if then one third of the contracting parties object within six month of the vote. In other words, 18 members can block a regulation.

On the other hand, to establish a new UN Global Technical Regulation, there must be a consensus vote. Thus, if any contracting party votes against a recommended UN Global Technical Regulation, it would not be established.

However, crucially, the book goes on to inform us that UN Regulations, UN GTRs and UN Rules developed under WP.29 are "optional". They do not carry the force of law until they are adopted and implemented by contracting parties to an Agreement into their national laws.

A separate document confirms that once a UN Regulation comes into force, it only binds legally those contracting parties which sign it. But it is not an obligation. They do not even have to adopt any of the UN Regulations. Furthermore, a Contracting Party can cease applying any Regulation at any time giving one year's notice.

On this basis, once it has left the EU and resumed an independent role in WP.29, the UK can participate in the production of UN Regulations which the EU, by its own rules, must adopt. But there will be no obligation on the part of the UK to adopt them, if it wishes not to do so (unless, of course, we stay in the EEA). Working with other countries, it can also block the EU's attempts to create UN Regulations – something which it could not possibly do as an EU member. And it can apply an absolute veto on GTRs.

This is a very different picture to that painted by David Ward, but it did not stop him on 12 June getting an article published in Auto Express lobbing in assertions similar to those he makes on his blog.

The latest "mark" for the Ward treatment, though, is Open Democracy, which ramps up the rhetoric, purporting to tell us: "How the UK is set to become a second-hand dealer in EU automotive regulation". Referring back to Mrs May's speech, Ward tells us that "it is time that reality and a hard-headed assessment of the UK's national interest should take precedence over the vague assurances offered by Theresa May".

To retain a strong influence in global automotive policy-making, he claims, "we need to remain in the Customs Union and the Single Market". This, he then says, "should be negotiated with a specific agreement to maintain UK participation in motor vehicle policy-making both in Brussels at the EU and in Geneva at the UNECE".

That, he asserts, "is the way for us to keep some ownership over a rule-making process that is vital for our vehicle manufacturing industry, environmental protection, and the safety of millions of us using our roads".

To make such assertions is so easy to do when you have gullible publishers who do not force you prove your claims. But the fact is that leaving the EU gives us a direct voice in the making of EU vehicle safety regulation, without us being in any way obligated to adopt them nationally if we're outside the EEA.

Of course, if we do not, we will not be able to export vehicles to EU/Efta states. But that would apply with or without UNECE involvement. But, in any event, where we would score significantly is in the ability to align ourselves with the United States and Canada (which are UNECE members) and address what amounts to an abuse of the voting system by the EU.

Although Ward feels it is an advantage, the EU is rather like the Soviet Union which in the bad old days kept the UN votes for its "autonomous republic", so that it could vote multiple times on the General Assembly. Thus, although it is a single bloc, the EU has 28 votes (soon to become 27), while the United States and Canada have but one vote.

This is one of the reasons why these two countries do not participate actively in WP.29 but, until they do, it can never really be regarded as a global system, even though Japan and Korea are part of it. The UK leaving the EU could be treated as a first step in redressing the balance, reducing its voting power which must be diminished still further.

In this context, the EU does us no favours. The stronger it is on UNECE, the less likely it is that we will get full engagement by the North Americans. In effect, a strong EU makes for a weak WP.29. And here, the penalty is not just confined to vehicle production. WP.29 could provide the model for harmonisation of the rules on medicines – the Holy Grail of global regulation.

The benefits of such global harmonisation far outstrip the relatively modest gains we could get from forging new bilateral trade agreements, so there is everything to play for. A newly energised UK, with a voice of its own, could help kick-start the process, adding untold wealth to the global economy.

And in that sense, greater participation in UNECE is not an arcane, theoretical concept. It could actually be the key to our post-Brexit prosperity. And the chance to turn the EU into a rule-taker is simply not one we could let pass by. The irony is too delicious.

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