Seven years on from the referendum and almost three years since the end of the transition period that marked the final exit from the EU, remarkably little progress has been made on the issue of divergence from EU laws and standards.
The arguments that were had back in 2016 – are we better off staying within a common system of standards or are there more benefits from doing things differently – are still essentially the same arguments that we hear today.
Naturally you could expect that the issue of divergence would keep coming up as we dived into separate, specific issues and determined the best position on each. But what’s at stake here is not an individual, case by case approach, where we weigh the merits of each decision by itself. Rather our public debate still mostly rests on broad abstractions, on the general principle of whether to diverge as a matter of course or whether non-divergence should be the default approach.
Positions on divergence are used as crude markers of allegiance more than as foundations of sound policy. If a politician is in favour of divergence then it is to demonstrate that they are a bold, enterprising Brexiteer, ready to seize the opportunities of a new world. If they are against, it is to show that they are a moderate, pragmatic type, who hears the concerns of businesses and wants to minimise trade frictions with our biggest partner.
Just last week, Keir Starmer provoked a backlash from Brexiteers and Brexit-backing media when he said that Labour did not “want to diverge” from the EU. Though he said relatively little and did not provide an explanation of how this would work in practice, it was enough for the accusations of ‘Brexit betrayal’ to start flying in. Brexiteers were quick to argue that divergence was essential and that any move away from this would be undermining Brexit.
Already, this gives us an insight into why the debate has moved so little.
Over the course of the referendum to today, Brexiteers have indulged in a circular logic on this point: we must leave to diverge, we must diverge because we have left. Whether divergence is good for the country or our competitiveness has become secondary to whether divergence helps justify the decision to leave the EU. If we diverge, then we are doing things that would not have been possible before and so Brexiteers can claim that Brexit has been essential. If we do not diverge, Brexit has no role.
The need to justify Brexit through ‘acts of Brexit’ also explains why many of its advocates have dropped the idea that all they want is for Britain to make its own decisions, regardless of what those decisions may be. If the ‘sovereign, democratic’ decision of British voters is to stay aligned with EU law and to prioritise definite trade in Europe over speculative benefits elsewhere, Brexiteers are no longer willing to accept that this is enough. Voters cannot simply make their own choice, they must make the Brexit choice in order for Brexit to be a success.
Yet even in this scenario, it should have been possible for us to move from the level of theory to practical examples. Why are we debating the idea of divergence more than individual laws where this might apply?
One simple explanation does come to mind: when it comes to specific laws and standards, more often than not, Brexiteers are losing the debate.
Any suggestion that standards might slip from where they were when we were in the EU is generally met by swift public revolt. While there has arguably been some divergence in certain cases (think food standards in trade deals), far from celebrating these cases, Brexiteers are anxious to insist that it is nothing of the sort. In the main, you are more likely to hear a government representative on the defensive, underlining that our standards have not changed in the slightest. Only infrequently do they uphold divergence as a success.
Of course, divergence is not all about moving away from existing standards or approaching regulation in a less strict manner. Sometimes we are regulating new areas where different approaches may all be valid and not so easily classified as ‘high’ or ‘low’ standards.
Tech regulation could be one such example.
Yet here too, we find that the reality of Britain under a Brexiteer government is that regulation is positioned as protecting consumers over creating space for experimentation. Narratives about promoting digital innovation struggle to hold up under the weight of the new Online Safety Bill, a law that was seen as erring so far on the side of caution that it prompted some strong words from Big Tech.
Given all the freedoms and powers they so craved - that they declared as essential for the survival of the nation - Brexiteers have hesitated. They have looked over the cliff edge and been held back by the waves of nausea.
For all the big words, actual divergence from the ‘European model’ remains widely unpopular, even among Leave voters.
And who can be surprised? A country that has instinctively seized upon the idea of banning a breed of dog considered dangerous is not primed for a pioneering new libertarianism.
Nonetheless, in spite of all this, we cannot say for sure that non-divergence has quite triumphed either. While this side of the debate has the advantage of public opinion, there is at times an assumption that non-divergence is the status quo. This is false.
The problem is that divergence does not simply depend on what the UK does but also on the EU. If the EU changes its law and the UK does not, then the two have diverged. Certainly it’s not the divergence of ‘Brexit opportunities’, but it is still divergence. It is passive divergence as opposed to active divergence.
If the UK stands still then passive divergence will take place as a matter of course. True non-divergence from EU law (and the benefits this can bring) requires constantly updating our law to match. Going further, getting the most benefit from this approach would mean updating our law on a near-automatic basis, giving the EU the assurance necessary to show that we could be trusted with greater market access.
This kind of set-up may well be the endpoint that we eventually reach under a Labour government. But for now, the leadership would deny any such plans and only speaks about non-divergence in vague terms. Indeed, it’s maybe too much to say that they are in favour of non-divergence, so much as being against active divergence. Whether Labour would, for example, update our domestic carbon market to catch up to the EU’s reforms, and open the way to linking the two back up (a way to reverse some passive divergence), remains an entirely open question.
And so the debate continues; the pro-divergence side unable to win the argument for their position, the anti-divergence side unable to really make the argument for theirs. A dismal status quo as Britain drifts.
One of areas of divergence mootes has been removal of caps on bonuses for the Financial Industry. It did not get anywhere -yet- probs not that popular with voters either