Category: Regulatory law

Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.

The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.

Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.

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The first striking thing about Thoburn is the complexity of the applicable law.

Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.

Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:

“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”

(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)

This judicial observation has wider import.

It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.

And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.

On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.

And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.

Few onlookers would side with the legal-ese.

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A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.

Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.

This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.

The legal arguments were hopeless.

And this, in turn, was (in my view) a problem.

Many people at the time (and since) thought there was something not right about these prosecutions.

It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.

It seemed – to use a European Union concept – disproportionate.

But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.

There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.

Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.

And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.

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Weights and measures – like currencies – are both instruments and ornaments.

As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.

As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:

https://twitter.com/jjvincent/status/1530905866689445888

I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.

And this is despite not being especially patriotic, and not being opposed to metrification in principle.

I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.

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But.

The government’s latest proposals. of course, do not make any sense.

This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.

Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings

And, in any case, often the relevant laws were home-made and not from Brussels:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

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The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.

And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.

(Few now can reckon in pounds and shillings – which also went in 1971.)

Yet it is one of those areas where law and policy cannot easily outpace lore and culture.

Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.

They will not easily shift – and perhaps some may never disappear altogether.

The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.

Such a government should be treated with disdain.

But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.

Not by a country mile.

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