Shepherd and Wedderburn Partner Gordon Downie spoke at this year’s Scottish Public Law Group conference in Edinburgh on 19 June on the topic of ‘Brexit and Regulatory Governance’. Gordon’s presentation focussed on the implications of Brexit for the regulatory governance arrangements across various sectors of the UK economy which have been established to align with the EU internal market acquis.

In this context Gordon discussed some precedents for other types of relationship between the internal market and European jurisdictions lying outside the EU. Two of the most often cited examples are the relationship established between the EU and the three EFTA States (Norway, Iceland and Liechtenstein) under the EEA Agreement, and that established between the EU and Switzerland under a series of bilateral Free Trade Agreements. 

Under the EEA Agreement, the three EFTA States participate fully in the internal market, with some exceptions (notably in relation to agriculture and fisheries). As a consequence, the EFTA States are bound to adopt all of the internal market rules and to integrate their regulatory governance arrangements with those of the EU. As we will see, that requirement has created some significant issues as regards accountability. Meantime, Switzerland remains outside the internal market albeit with preferential access arrangements in the limited number of sectors covered by the bilateral FTAs. As a result, Switzerland has greater latitude (at least in theory) than the EFTA States as regards the framing of its domestic regulatory policies and governance arrangements.

Whilst it is premature to think about the relevance of these examples for the post-Brexit period, the EEA example may be particularly important in the ‘peri-Brexit’ period between Brexit Day (currently scheduled for 29 March 2019) and the date on which the post-Brexit deal comes into effect. Given that a post-Brexit deal (if there is one at all) is unlikely to be struck until some years after Brexit Day, the peri-Brexit deal – the deal that avoids a cliff edge in just over 18 months’ time – will be of huge practical significance in the short to medium term. The EEA Agreement (which was itself designed to be a means of transitioning into full EU membership) has some big attractions as a basis for the peri-Brexit period, given that it could be a means of transitioning out of full EU membership and allowing full participation in the internal market in the interim.

To view Gordon's presentation slides, click here.


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