Cosying up to Europe will come at a cost

So Keir Starmer’s Brexit reset is taking shape. Almost 10 years after the referendum that took us out of the European Union, the prime minister has declared that a closer relationship with Europe “is in the UK’s best interest”.

Negotiations on key trade and standards agreements are under way, notably on SPS, or sanitary and phytosanitary standards, the rules governing food safety, animal health and plant health that became a crunch issue after Brexit, sparking increased border checks and red tape for the UK.

Starmer believes that deals on food standards, as well as energy and carbon emissions, are necessary to reduce friction on the UK/EU borders, as well as with Northern Ireland, and thus reduce the significant burden on business as well as the cost of living.

But closer alignment with our biggest trading partner will come at a price.

The government knows that if it is to strike a deal, the UK will not only have to catch up with EU rules agreed during the Brexit period – such as those on the naming of marmalade – but also keep up to date with new EU legislation coming down the track.

Dynamic alignment – following EU rules, even though we have no say in the making of them – makes us rule-takers, not rule-makers, putting us in the same position as Norway and Switzerland. While these nations have a “decision-shaping” role, meaning that the European Commission consults them on drafts of measures, they do not have a say on the negotiations.

There will doubtless be cries of “Brexit betrayal” – and it is certainly true that Starmer is engaging in a programme of a significantly closer relationship to the EU. However, this was a manifesto commitment, and the agreements the PM is currently negotiating fall a long way short of single market or customs union membership, which have been his red lines.

There is a further legal issue that opponents of a closer relationship with the EU will seize upon. EU SPS and other rules need to “land” in the UK system. It is likely that the government will use the King’s Speech next month to announce legislation giving it the power to implement the EU rules on SPS, ETS (emissions trading system) and energy via statutory instruments (SIs) – secondary law that gets much less scrutiny by Parliament.

Using SIs is a quicker way of passing law, especially when the rules are highly technical. About 3,500 SIs are already passed every year, but that hasn’t stopped some newspapers referring to them as “Henry VIII powers”, as they allow ministers to approve new laws without full scrutiny.

All governments use Henry VIII powers. This was especially the case during the Brexit years, when the Conservative government was responsible for hundreds of extra SIs to deliver on the significant changes required by Brexit. So cries of threats to democracy may be overdone.

But there is a further challenge for the UK government. Much of the legislation in the field of SPS affects areas of devolved competence. Westminster is going to have to find a way of ensuring that the devolved administrations are involved as much as possible, at as early a stage as possible, to ensure the UK can fulfil its commitments.

If Starmer can successfully negotiate agreements in the three areas, plus a youth experience scheme also currently being discussed, as well as getting the necessary legislation through parliament, he will be delivering on his commitments – and may then explore other areas of closer alignment such as chemicals and pharmaceuticals.

Professor Catherine Barnard is professor of EU law and employment law at Trinity College, and deputy director of the UK in a Changing Europe think-tank