

Brexit: a comedy (not) of errors 11/09/2017

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It used to be the case that Sunday papers (and the broadcast media) would review the news of the preceding week, clarifying, evaluating and analysing events. But some time ago – difficult to say when - the emphasis changed and the media outlets started to compete with each other to set the agenda for the coming week.



In news terms, last week was extremely busy and we could have done with some old-style review and analysis, but it was not to be. The ST having him "getting tough" on migrants "13 years after opening [the]doors.



Giving the game away as to the real objective of the newspaper, we saw it state: "In an explosive intervention that will electrify the Brexit debate ...". Sensationalism is at the heart of the process.



In reality, though, this is displacement activity. The media (and, indeed, the politicians) are doing everything and anything but focus on the issues at hand, of which there are three:- expat rights and the ECJ, the financial settlement and the Irish issue.



To the media, these are "boring". They've already been covered so they are no longer "news" or of interest. The concern is to find a new angle on something completely different, so they can claim they're setting that elusive agenda.



Sadly, for the UK negotiating team, when they return to Brussels, it will be groundhog day all over again: expat rights and the ECJ, the financial settlement and the Irish issue. We will be no further forward, and all the worse for the issues not having been rehearsed, and options explored.



Meanwhile, today we see the continuation of the second reading debate on the European Union (Withdrawal) Bill. And, as part of its charm offensive aimed at securing a fair passage, the Government has published a 58-page



In the time I've had since its publication, I've been able to take a closer look at it and, in particular, the worked examples of how specific pieces of EU legislation would be amended in order to render them workable as UK law.



One of those examples takes in the 1,355-page Regulation (EC) No 1272/2008 on the Classification, Labelling and Packaging of Substances and Mixtures – the CLP Regulation (see page 53). This is the EU law which implements the UN's Globally Harmonised System of Classification and Labelling of Chemicals (known as GHS).



Those familiar with the Regulation will know that its primary purpose is harmonisation – not at an EU level (which has long since been achieved) but globally. The legislation represents the European end of a



Its underlying logic is sound. In implementing the global standard, it facilitates the free movement of chemicals: as long as the products comply with the regulation, access to foreign markets cannot be excluded on the grounds of non-conformity of labelling with any differing local standards.



Given the purpose of the Regulation, it is hardly surprising that this is specifically stated in Article 1, in terms of ensuring "a high level of protection of human health and the environment as well as the free movement of substances, mixtures and articles …". This is to be achieved by: "harmonising the criteria for classification of substances and mixtures, and the rules on labelling and packaging for hazardous substances and mixtures".



It is then somewhat ironic that the suggested UK amendments, set out in the memorandum, omit "the free movement of substances, mixtures and articles …". Then, where reference is made to "harmonising" the rules, this is deleted and the word "establishing" is substituted.



The new text in the UK regulation will thus read that the objective of the regulations is achieved by: "Establishing the criteria for classification of substances and mixtures, and the rules on labelling".



By this means, in one fell swoop the main purpose of regulation is removed, and with it the mechanism for ensuring convergence with EU and global standards. Thus, if this amendment is formally adopted in its suggested form, it will loosen the links with the EU and create another potential barrier to our exports.



Of interest though, is not only the list of amendments, but what is omitted. Article 2 of the EU Regulation takes us to the "definitions" section. A suggested amendment has already changed the reference to the European Chemicals Agency to "Executive", and the definitions are extended to tell us that this means the Health and Safety Executive.



There is then one other amendment to the definitions, where the meaning of "competent authority" is changed. In the existing Regulation it is defined as "the authority or authorities or bodies established by the Member States to carry out the obligations arising from this Regulation". As amended, it becomes "the authority or authorities or bodies established by the Secretary of State to carry out the obligations arising from this Regulation".



The thing is, though, that is the full extent of the suggested amendments to Article 2. By way of background, we need to appreciate that the Regulation applies to, and imposes duties on, chemical manufacturers, in which context the legal definition of a manufacturer becomes quite important.



In the EU Regulation, the "manufacturer" is defined as "natural or legal person established within the Community who manufactures a substance within the Community". Yet the UK version of the Regulation, this remains unchanged.



Effectively, since the UK will have left the EU, the law will no longer apply to UK manufacturing operations if they are not "established within the Community" or manufacture in the EU. Unintentionally, in "converting" the EU Regulation into UK law, the UK law no longer applies to UK operations.



Rather neatly, then, this example offered by the Government illustrates the hazards involved in amending EU law. With something like 12,000 Regulations to check, the scope for errors and omissions is enormous. The Government has set itself a monumental task – and demonstrated its fallibility.



Nor does it end there. The Government's memorandum also refers to the REACH Regulation (page 13), stating: In certain scenarios, a UK body may need to start evaluating and authorising chemicals in the UK taking over functions currently performed at a EU level. The European Chemicals Agency currently conducts evaluation and authorisation of chemicals under the REACH regulation (Regulation (EC) No 1907/2006). This function may need to be transferred so that consumers can continue to have confidence in the safety of certain chemicals and their proper regulation and international markets have sufficient confidence in the UK’s products so that UK businesses can continue exporting. In the event of no deal in this area, a UK government body would take on the functions of assessing chemical substances under the REACH regulation. Here, we see the reference to international markets, but there is no mention of the markets in EU Member States. However, as I have



Alarmingly, delusional thinking and evasion pervades the Brexit debate. What applies to the chemical industry applies in spades to pharmaceuticals. Yet, the infamous



Specifically, it cites the USA and Canada, which "operate a regulatory Compliance Council covering a wide range of products including pharmaceuticals, vehicles, food and plants and environmental matters".



Flipping over to the To enter the EU, medicinal products for human use must be authorized at either the member state or EU level. Authorizations are granted only to applicants established in the EU. A Canadian company without a presence in the EU must use an EU-based importer or representative to market any pharmaceutical product in the EU. For "Canadian company", read UK company when Brexit takes effect. No amount of amendment of EU law will make it any different. Canada, one recalls, already has a trade deal with the EU. It makes no difference to the marketing of medicines or many other products.



To that extent, the European Union (Withdrawal) Bill is being vastly oversold. It is of course necessary, but there is much, much more to Brexit than repatriating EU law and making consequential amendments. But the many issues arising are simply not being discussed, while the media and their political handmaidens hare off after fresher fields and their ever-newer "washes whiter" agendas.



Just for once, it would be such a change if the media could get down in the weeds and look at real life issues that will make or break Brexit. But we already know that is too much to ask. The errors go unchecked and the comedy turns to tragedy. It used to be the case that Sunday papers (and the broadcast media) would review the news of the preceding week, clarifying, evaluating and analysing events. But some time ago – difficult to say when - the emphasis changed and the media outlets started to compete with each other to set the agenda for the coming week.In news terms, last week was extremely busy and we could have done with some old-style review and analysis, but it was not to be. The Sunday Times and then the Marr Show led the way with Tony Blair, with thehaving him "getting tough" on migrants "13 years after opening [the]doors.Giving the game away as to the real objective of the newspaper, we saw it state: "In an explosive intervention that will electrify the Brexit debate ...". Sensationalism is at the heart of the process.In reality, though, this is displacement activity. The media (and, indeed, the politicians) are doing everything and anything but focus on the issues at hand, of which there are three:- expat rights and the ECJ, the financial settlement and the Irish issue.To the media, these are "boring". They've already been covered so they are no longer "news" or of interest. The concern is to find a new angle on something completely different, so they can claim they're setting that elusive agenda.Sadly, for the UK negotiating team, when they return to Brussels, it will be groundhog day all over again: expat rights and the ECJ, the financial settlement and the Irish issue. We will be no further forward, and all the worse for the issues not having been rehearsed, and options explored.Meanwhile, today we see the continuation of the second reading debate on the European Union (Withdrawal) Bill. And, as part of its charm offensive aimed at securing a fair passage, the Government has published a 58-page explanatory memorandum , to which I've already referred.In the time I've had since its publication, I've been able to take a closer look at it and, in particular, the worked examples of how specific pieces of EU legislation would be amended in order to render them workable as UK law.One of those examples takes in the 1,355-page Regulation (EC) No 1272/2008 on the Classification, Labelling and Packaging of Substances and Mixtures – the CLP Regulation (see page 53). This is the EU law which implements the UN's Globally Harmonised System of Classification and Labelling of Chemicals (known as GHS).Those familiar with the Regulation will know that its primary purpose is harmonisation – not at an EU level (which has long since been achieved) but globally. The legislation represents the European end of a global initiative which included input from UNECE and many global bodies.Its underlying logic is sound. In implementing the global standard, it facilitates the free movement of chemicals: as long as the products comply with the regulation, access to foreign markets cannot be excluded on the grounds of non-conformity of labelling with any differing local standards.Given the purpose of the Regulation, it is hardly surprising that this is specifically stated in Article 1, in terms of ensuring "a high level of protection of human health and the environment as well as the free movement of substances, mixtures and articles …". This is to be achieved by: "harmonising the criteria for classification of substances and mixtures, and the rules on labelling and packaging for hazardous substances and mixtures".It is then somewhat ironic that the suggested UK amendments, set out in the memorandum, omit "the free movement of substances, mixtures and articles …". Then, where reference is made to "harmonising" the rules, this is deleted and the word "establishing" is substituted.The new text in the UK regulation will thus read that the objective of the regulations is achieved by: "Establishing the criteria for classification of substances and mixtures, and the rules on labelling".By this means, in one fell swoop the main purpose of regulation is removed, and with it the mechanism for ensuring convergence with EU and global standards. Thus, if this amendment is formally adopted in its suggested form, it will loosen the links with the EU and create another potential barrier to our exports.Of interest though, is not only the list of amendments, but what is omitted. Article 2 of the EU Regulation takes us to the "definitions" section. A suggested amendment has already changed the reference to the European Chemicals Agency to "Executive", and the definitions are extended to tell us that this means the Health and Safety Executive.There is then one other amendment to the definitions, where the meaning of "competent authority" is changed. In the existing Regulation it is defined as "the authority or authorities or bodies established by the Member States to carry out the obligations arising from this Regulation". As amended, it becomes "the authority or authorities or bodies established by the Secretary of State to carry out the obligations arising from this Regulation".The thing is, though, that is the full extent of the suggested amendments to Article 2. By way of background, we need to appreciate that the Regulation applies to, and imposes duties on, chemical manufacturers, in which context the legal definition of a manufacturer becomes quite important.In the EU Regulation, the "manufacturer" is defined as "natural or legal person established within the Community who manufactures a substance within the Community". Yet the UK version of the Regulation, this remains unchanged.Effectively, since the UK will have left the EU, the law will no longer apply to UK manufacturing operations if they are not "established within the Community" or manufacture in the EU. Unintentionally, in "converting" the EU Regulation into UK law, the UK law no longer applies to UK operations.Rather neatly, then, this example offered by the Government illustrates the hazards involved in amending EU law. With something like 12,000 Regulations to check, the scope for errors and omissions is enormous. The Government has set itself a monumental task – and demonstrated its fallibility.Nor does it end there. The Government's memorandum also refers to the REACH Regulation (page 13), stating:Here, we see the reference to international markets, but there is no mention of the markets in EU Member States. However, as I have already pointed out , no amount of amendment by the UK government can make the EU recognise our certification. If we are to continue exporting chemicals to the EU Member States, they will have to conform to EU law.Alarmingly, delusional thinking and evasion pervades the Brexit debate. What applies to the chemical industry applies in spades to pharmaceuticals. Yet, the infamous Legatum Institute argues that there should be "no legal or practical obstacle to agreeing ongoing cooperation when the UK is a third country".Specifically, it cites the USA and Canada, which "operate a regulatory Compliance Council covering a wide range of products including pharmaceuticals, vehicles, food and plants and environmental matters".Flipping over to the Canadian trade website , however, we see:For "Canadian company", read UK company when Brexit takes effect. No amount of amendment of EU law will make it any different. Canada, one recalls, already has a trade deal with the EU. It makes no difference to the marketing of medicines or many other products.To that extent, the European Union (Withdrawal) Bill is being vastly oversold. It is of course necessary, but there is much, much more to Brexit than repatriating EU law and making consequential amendments. But the many issues arising are simply not being discussed, while the media and their political handmaidens hare off after fresher fields and their ever-newer "washes whiter" agendas.Just for once, it would be such a change if the media could get down in the weeds and look at real life issues that will make or break Brexit. But we already know that is too much to ask. The errors go unchecked and the comedy turns to tragedy.





