Sexy Regulations

It was somewhere in Central Europe (or was it Central Asia?) in the late 1990s where I first encountered the phrase “Regulatory impact”….Those were the days when the State and its activities was a thing of scorn, when state controls were being dismantled and the language of “deregulation” was at its height….”Regulatory impact analysis” at best was a tool to help that process – although it was sometimes a reluctant concession to the obstinate fact that regulations actually had positive social effects…..

At some stage, the discourse actually moved onto that of the “Regulatory State” – and my mountain shelves indeed have a (n essentially untouched) 2003 book of that title – The British Regulatory State; high modernism and hyper-innovation - by the sadly deceased Michael Moran which this 2011 paper called The Odyssey of the Regulatory State may help me understand.

So Anthony Barnett was not exactly alone when he confessed last summer that he had only recently realized the significance of regulations to the European Union which, he further argues, were by no means as badly perceived by significant sections of the British public as the Brexiteers had initially argued…..  Indeed the Brexit campaign had to tone down that part of their message…..

Grenfell Tower stands as a witness to the consequence of permissive deregulation. As the fridge caught fire in Flat 16 of the fourth floor of Grenfell Tower on the 14 June 2017, it sucked a whirlwind of inadequate, flawed, ill-enforced regulation and cuts in fire-brigade risk assessment and enforcement, into a murderous inferno. It was nothing to do with the EU but it would never have happened had the EU set the UK’s building standards and their implementation.

The result is that people want there to be regulations. In a remarkable article drawing  on a  research and polling by IPPR Marley Morris analysed how, historically, the call for deregulation was a keynote of the anti-EU campaigns and the creation of anti-EU sentiment. In 2013, freeing British business from “excessive regulation” was singled out by then Prime Minister David Cameron, as one of his main aims, when he announced the party’s commitment to renegotiate the UK’s relationship with the EU and then call a referendum. The EU could not concede. As the referendum approached the Leave side was justifiably accused of seeking to strip the public of such regulations as the Working Time Directive, which limits hours of work. Then their polling and focus groups reported that such de-regulation was very unpopular. So the Leave campaign dropped its call. Morris explains,
 “The root cause of this shift was simply that there was – and indeed still is – no public appetite for a deregulatory agenda. Our own polling with Opinium has found widespread public support for some of the most controversial EU-derived employment, environmental and financial legislation… Renewable energy targets – another bugbear of earlier Eurosceptics – are endorsed or considered too low by 74 per cent… more than 80 per cent of the public are opposed to lowering food safety standards. When confronted with this wall of public opinion, it is no surprise that leave campaigners adapted their position as the referendum date neared”.

The anti-EU campaign is one of the strangest on record. It began by demanding an end to European regulation while increasing trade with the EU. Its triumph has led it to embrace less trade with the EU while retaining its level of regulation! When it comes to 80% you can’t argue with “the people’s will”. Or as Theresa May put it in har Mansion House speech that Johnson praises but ignores, in "areas like workers’ rights or the environment, the EU should be confident that we will not engage in a race to the bottom in the standards and protections we set. There is no serious political constituency in the UK which would support this – quite the opposite".

Barnett’s article focuses on a 2007 book The Rise of the Unelected – Democracy and the new Separation of Power by Frank Vibert which I had come across but not given particular attention to…..Barnett wants to know why the significance of regulation for the EU hasn’t been properly recognised.....

Routledge have just published a densely researched Handbook on Brexit edited by Patrick Diamond, Peter Nedergaard and Ben Rosamond. It has 23 scholarly articles and aims to set out a “systematic academic overview” of the Brexit process. They encompass the special character of the British state, the English and Irish questions, the role of the city of London, the flaws of the EU and the need to rethink theories of its nature. But regulation only figures as an aspect of financial policy for the City of London.

The respected Centre for European Reform published a 50 page overview of how to Relaunch the EU in November last year. It is sober, thorough and addresses the need to make the EU more responsive. But it does not mention regulation or the need to make this accountable. The arguments that Vibert has developed remain peripheral to mainstream thinking.

Few British citizens understand the “deal” which has been struck with the EU – references in particular to the “single market” and to the “customs union” utterly confuse and I therefore think  Barnett may be both right and wrong. British people do think that parliamentary sovereignty is important; and that the expert rule embodied in EC regulations has gone too far. Barnett continues….

Shortly after Open Europe, which is directed by Brexit-supporting Henry Newman who once worked for Michael Gove, published Striking a Balance, a report that recommends an across-the-board agreement on these lines. Its justification: “The EU is our most important goods’ market and the most highly-regulated sectors – electrical, automobiles, and chemicals – are the areas which we trade most with the EU and are growing the fastest”. Unlike Boris Johnson, Brexiteers who study the evidence want the UK to be in the Single Market for goods. The government will apply “to stay in the European standards system for industry products and services”.

It is easy enough to ask, as we should, what, then, is the point of Brexit? Another good question is whether the EU will agree to the request. I want to ask why even passionate Brexiteers now see no way out of the EU’s regulated space, certainly in traded goods. The crux of the answer is that that there is no way out of regulation.
By regulation I don’t just mean high profile financial regulation. I mean its ongoing, background role in ensuring the quality of the air we breathe, the medicines we take, the food we consume and the safety of the flights we board. You could undertake the enormous costs of building custom checks for goods going between the UK from the EU. But what is the point, if you then have to recreate and duplicate inside the UK the entire apparatus of regulations, with their ongoing autonomy from parliamentary 'sovereignty'?

The idea that once the UK left the EU Britain could ‘do away’ with regulation from Brussels, because it is mostly unnecessary, has proven to be an utter fantasy. Britain’s wannabe Donald Trump, Nigel Farage, told the BBC, “we will finish up perhaps in an even worse place than we are now because we won’t be free to de-regulate”. But no modern democracy would wish to deregulate. It is not the road to freedom. And as the UK government is learning, public opinion will not let it deregulate. This is a fundamental lesson of Brexit.
 The lesson is related to, but goes further than, Will Davis's notable response to the referendum result in 2016. Drawing on David Graeber's "The Utopia of Rules", Davis emphasised that in an important way "capitalism is regulation" and concluded that the ideology of Brexit is illusory.
In the UK, these dire, Brexit-times have bred impatience, shallowness and lack of reflection. I want to resist these and examine an activity which may seem petty and irritating but isn’t.