Private practice insights on post-Brexit compliance

By Peter Sellar

One of the much-vaunted benefits of Brexit was that there would be less red tape.

In legal terms, I suppose that meant fewer laws and thus less need to comply with otherwise burdensome rules and regulations, a free-er marketplace in which, I imagine, businesses would thrive more than would be the case in the European Union. They would make more profit and, perhaps even, hire more people and pay them better, etc.

That may have been the dream and may yet be the ambition but what it necessarily means is regulatory mis-alignment with the EU.

If there was and still is one business attraction of the EU, it is that it offers in large part a one-stop-shop marketplace. Roughly speaking, if you make your widget in France, that will be good enough for your customer in Finland. Ditto for Malta and Ireland and vice-versa. But now, if you are to make that same widget somewhere in Scotland or England or Wales (I am deliberately leaving out the slight complexity that is Northern Ireland), do you have that same benefit?

Well, it depends entirely on the extent to which there is alignment between GB rules governing said widget and  EU rules on the same. And even if there is alignment, is there the legal mechanism agreed between the two now-separate legal jurisdictions that says that each one’s set of rules will be mutually recognised so that the widget can pass smoothly from the GB manufacturer to the Cypriot or Slovenian customer (and back again)?

More rough than smooth

My recent private practice experience says that the smooth has been replaced by the rough. And that has come about as a result of two dynamics which may operate differently but  end up in the same place.

On the one hand, we have the EU sprinting away with new regulations which the UK has either not caught up with or has chosen to go more slowly than. Placing a restriction on the use of tattoo ink, for example, is now part of the regulatory landscape in the EU, while in GB there is a watered-down proposal out for consultation only at this stage. Another example: if you are a farmer, you might use Glyphosate in your repertoire of products to protect your crop. That will be more easily done in GB than in the EU because the EU has decided to regulate the use of that substance more strictly. The lethargy – deliberate or otherwise – amounts to passive mis-alignment.

The second dynamic is where GB chooses to do something actively different. I am not sure I have many private practice examples of that but were it to happen, I suppose that would be a true reflection of one of the Brexit campaign’s claims.

Two regulated markets

What is definitely the case, though, is that, with GB (choosing?) not to stay aligned, business now needs to cater for two separate regulatory markets. There was a phoney Brexit war between 23 June 2016 and 31 December 2020 with a blip of legal advice activity during 2020 before political and legal accommodations were reached to ease in the differences post 1 January 2021. But what is clear now is that business needs to cater for two separate regulatory markets if they wish to keep both markets.

And therein lies the rub. Do they wish to?

If they don’t, I assume that will turn out to be an overall negative for the consumer: choice will go down while prices will go up.

But the consumer is more than another ‘thing;’ it is as well  a ‘person’ and for me the EU was always about the mixing of peoples, their freedom of movement. I have sympathy for the widget and the regulatory hurdles it is facing anew. But I have far more sympathy for that student or worker or retiree whose height of ambition is now London, not Madrid, Rome or Santorini.

Peter Sellar, an advocate, is a partner in the competition, regulatory and trade group in Fieldfisher’s Brussels office. He is an EU regulatory law specialist. With 20 years’ experience, he specialises in environmental law, in particular general chemicals, biocides and pesticides law at EU, national and international levels.

This article is part of the Scotland-Europe Initiative.

The RSE’s blog series offers personal views on a variety of issues. These views are not those of the RSE and are intended to offer different perspectives on a range of current issues.

You might also like