Dynamic alignment: A new policy principle in the making?

The news that talks between Labour and the Conservatives have moved down to the more technical level of individual policies, laws and standards is a sobering reminder of just how little progress has been achieved in the Brexit process. Most of the last three years has been devoted to securing agreement on the terms of the UK’s withdrawal from the EU.  Despite the UK’s pleadings, negotiations on a future trading relationship – and hence future policies, laws and standards – have barely started.

The inter-party talks are now engaging with these issues which are even more sensitive.  They are being conducted in three working groups, covering future security issues, worker rights and environmental protection.  One relatively technical but nonetheless important matter that will already have come up is that of ‘dynamic alignment’.  But what does dynamic alignment actually mean, what are its origins and what are likely to be the implications of (not) enshrining it in UK and/or EU law?

The origins of dynamic alignment in the Brexit debate

The term dynamic alignment first rose to prominence when it appeared in a letter written by Jeremy Corbyn to Theresa May, dated 6 February 2019, in which he outlined five demands that would be required for Labour to vote for a Brexit deal. The letter was written at a critical juncture, just a few weeks after May’s Brexit deal had suffered an historic defeat in the Commons. Shortly after, Michel Barnier, the Commission’s chief negotiator, had warned that Brexit had reached a standstill.

The third demand in Corbyn’s letter was worded as follows: “dynamic alignment on rights and protections so that UK standards keep pace with evolving standards across Europe as a minimum, allowing the UK to lead the way”. Shortly after, Greener UK, the body coordinating the main environmental pressure groups in the UK, also endorsed dynamic alignment “on the environment, social protection and other matters”.

Dynamic alignment in theory

At the outset, it is worth clarifying two important things about dynamic alignment.  First of all, the debate about its meaning and application is more directly relevant to the Political Declaration (and hence the future relationship with the EU) than the Withdrawal Agreement, although as currently drafted the concept appears in neither document.

Second, dynamic alignment is different to the commitment to environmental non-regression that the EU has already asked the UK to legally commit to (non-regression appears in the draft Withdrawal Agreement, but not the Political Declaration).  The commitment to environmental non-regression sets a fixed baseline below which the environmental standards of both parties cannot fall during and after the transition period.  It contains no end date.  It also does not guide policy makers in what to do if circumstances change – if there is technological innovation or greater scientific understanding etc.

Dynamic alignment on the other hand seeks to ensure that regulatory standards continue to move in the same direction after Brexit day. In the absence of a non-regression clause, standards would in theory be able to move freely either in an upwards or a downwards direction, or even both directions at the same time.  The key thing is that they remain dynamically aligned.

Dynamic alignment and EU law

The origins of dynamic alignment are rather obscure. It is certainly not a hard and fast principle of EU law, fully enunciated and enshrined in the Lisbon Treaty. But keeping up with the ever changing law of the EU is nonetheless a basic obligation of membership; it is part of committing to an ever closer union.

The EU’s interpretation of and commitment to alignment have been briefly clarified in the withdrawal debate; they appeared in a set of PowerPoint slides produced by a rather anonymously sounding ‘ad hoc working party on Article 50’.  Crucially, for the Commission, dynamic alignment is what Member States sign up to when they become members of the Single Market.

Dynamic alignment in practice

In practice, ‘dynamic’ and ‘alignment’ should be regarded as relative concepts, to be carefully attuned to specific regulatory situations. We know this from the way in which EU environmental policy currently functions. The EU employs the legal vehicle of Regulations to govern the trade in products (such as cars, tractors and fluorinated chemicals), which set specific standards and, once adopted at EU level, are immediately effective across all 28 Member States.  In other words, Regulations are used by the EU as a relatively centralised and more immediately effective means to achieve dynamic alignment across Europe.

By contrast, environmental Directives often deal with issues (such as water quality and habitat protection) that sit behind national borders.  Directives are not – in legal terminology – ‘directly effective’ i.e. need to be transposed into national legislation, a process which takes time and local political support. Directives tend to establish less specific long-term goals and normally leave Member States more leeway to determine how they are implemented.  In other words, they offer a more open and less hierarchical approach to dynamic alignment than Regulations, generally resulting in national standards that more fully reflect national circumstances, but which nonetheless must exceed common minimum standards.

The attractions of dynamic alignment

The EU’s is very much a hybrid approach that uses Directives and Regulations to link dynamic alignment with non-regression.  This approach will, of course, prevail as long as the UK remains a member of the EU, i.e. throughout the Article 50 process and through any subsequent transition period (if one is granted). It is what happens after the end of the transition that is currently exercising the members of the three inter-party working groups.

What is the UK environmental sector hoping for?  For green businesses, a legal commitment to dynamic alignment could provide greater certainty for the green economy to innovate and invest in water, energy and natural capital, as well as offer preferential market access to the Single Market.  For environmental pressure groups, alignment could help to lock existing environmental protections into place, releasing these groups from the potentially massive task of having to work on every single law, policy and standard after Brexit day.

Labour appears keen to respond to these demands by locking non-regression and dynamic alignment into the Political Declaration, which the EU has said it may be open to. But dynamic alignment goes to the heart of some of the most deeply divisive political issues that have surfaced since 2016. For Corbyn, it is a key part of Labour’s pitch for a UK-wide customs union, a close alignment with the Single Market and participation in relevant EU agencies and funding programmes.  For Brexiteers, it equates to surrendering control and should therefore be forcefully resisted at all costs.

Thus in her reply to Corbyn, Theresa May pointedly refused to track EU rules, arguing that such “decisions should be taken in our Parliament by our elected representatives”.  Her reply went on to argue that “we don’t need to automatically follow EU standards in order to lead the way – as we have done in the past under both Conservative and Labour Governments”. In other words, Brexit does not require a formal, legal commitment to dynamic alignment to be Green. Instead, the UK Government is keen to engage in what Michael Gove has termed “rivalrous emulation”.

Legal commitment: The bedrock of dynamic alignment?

The problem for Mrs May is that many Remainers harbour serious doubts that the political commitment to emulate the EU will survive when her premiership ends, hence the demands for a ‘Boris lock’.  Simply amending the Withdrawal Agreement Bill (the UK legislation needed to implement the Withdrawal Agreement) to endorse dynamic alignment will not provide them with the full legal certainty that they seek because it will not and cannot bind a future UK Prime Minister to emulate EU standards.

There are important lessons that can be learnt on this issue from the Norway and Swiss models. The Commission’s PowerPoint slides acknowledge that a variant of dynamic alignment has “been tried” in these two countries, but has not been sufficiently robust to be worthy of replication. In Norway, politicians enjoy a formal Right of Reservation over the dynamic application of new EU rules, but apparently have never used it, fearing that it might result in the suspension of market access. The UK Government conceded this very point on page 95 of Mrs May’s now infamous Chequers Agreement.

The Withdrawal Agreement Bill could of course be amended to require the Government to report to the House on any new EU rules, and then put a motion before the House on what it intends to do about them.  However, this would not be particularly dynamic and it may not result in any alignment if the Government decided not to incorporate new rules into UK law, or if the motion succumbed to a Chope-style blocking manoeuvre.  In such cases, something very different – passive divergence – would be the more likely outcome.

One only has to consider the full array of environmental commitments included in the Withdrawal Agreement (to things like non-regression, ongoing monitoring, full reporting and rigorous enforcement) to realise how much the EU doubts the UK’s long-term commitment to aligning their respective regulatory systems.

Why the governance of dynamic alignment will matter

The technical talks between the two main parties may or may not result in agreement.  Rather than surrender her red lines, the Prime Minister may well opt to give her deal another final push to get it over the line. But even if the UK leaves the EU before the European Parliament elections in May, the vexed issue of dynamic alignment will not disappear because it is such an inextricable part of the EU’s Single Market programme, and because it touches upon so many sensitive issues in UK politics.

For example, dynamic alignment may ostensibly concern rather dry, technical matters such as regulatory standards, but as in so many other Brexit-related debates, it quickly intrudes into much more sensitive matters of policy and governance.  Thus if standards are to be dynamically aligned, who or what will ensure that implementation is transparently monitored and any transgressions are robustly enforced?

The protracted negotiations over the Withdrawal Agreement have surely taught us that the EU fully expects any new free trade agreement with the UK to be underpinned by national reporting, monitoring and enforcement systems, overseen by Joint Committees with surveillance and dispute resolution powers.  And that is before the vexed issue of devolution within the UK is factored into the mix.

Second, history tells us that the EU is likely to be more concerned about the dynamic alignment of standards relating to the trade in goods than ‘behind the border’ issues such as nature protection and water quality.  Mrs May effectively conceded the need for ‘a common rulebook’ on goods in her Chequers plan, but left open the question of how it would be updated. In the next few months and years we will see whether dynamic alignment is up to this sensitive task, particularly in relation to the ‘behind the border’ issues.

Prediction is a difficult business in all things Brexit-related, but the environmental sector would be wise to prepare for a future scenario in which there is more centralised and more dynamic alignment in relation to product standards, and looser governance on other issues, with a greater reliance on that most fickle of things – political commitment.

A new policy principle in the making?

We may be witnessing the birth of a new policy principle, one designed to govern a new phase in the relationship between the UK and the EU.  By striking a legal agreement to implement dynamic alignment, the UK Government may be able to draw the negotiations with Labour to a swift close, secure an exit deal and finally leave the EU. Dynamic alignment may also help the UK to strike a more comprehensive trade deal with the EU 27. But it will not in and of itself deliver a Green Brexit.

About the author

Professor Andy Jordan is Professor of Environmental Sciences at the University of East Anglia and Co-chair of Brexit & Environment.

Image courtesy of Pixabay.