Why doesn't the EU just agree equivalence?

Over the weekend, discussion once again resurfaced regarding some kind of grand equivalence deal between the UK and the EU. Leaving aside general commentary on social media, this point was pushed in the Daily Mail's Sunday editorial. Faced with growing chaos at the UK's borders and spreading shortages across the country, Brexit-backers are now trying to find new ways to circumvent the reality that Brexit has thrown up barriers to trade with our closest partners, with inevitable consequences. 

To sidestep the realistic options of rejoining the EU and the Single Market, the paper's comment piece therefore revived the zombie of a broad-brush deal that would eliminate the need for most checks without actually binding the UK's hands in any way. Specifically they argued that for the EU to 'accept the equivalence of our quality and health controls' would be 'rational and workable'.

Like most pro-Brexit arguments, it is beguilingly simple - we have high standards and so does the EU, why not just all agree that it's on the level and not bother with all these messy border controls?

First of all, let's discuss equivalence for what it is. It is not a 'common sense' measure that we would expect to spring up naturally between two close partners. In the real world today, equivalence deals are unusual, even between countries that otherwise enjoy very close political relations. Where equivalence deals do exist, they are often narrowly focused, only addressing some of the least sensitive areas and generally leaving many checks still in place. There is no precedent for equivalence on a level that could replicate the frictionless trade inside the EU Customs Union and Single Market. This is simply the nature of trade and politics in the modern world.

So if your standard equivalence deal is an unusual act of trust, then a grand bargain on equivalence - of the kind that Brexiteers suggest and which would be necessary to really do away with border checks - would be something exceptional, a rare marvel that would defy most of what we know about international relations and the reluctance of states to blindly trust one another. 

It is difficult, to say the least, how anyone can seriously argue that this level of trust exists between the UK and the EU today. 

And if the Brexiteers would like to build such a deep trust-based relationship, then constantly accusing the EU of being deliberately obstructive, of making purely political decisions aimed at harming the UK and of being a general fountain of immoral and repulsive behaviour, may not be the best course of action.

But even if we imagined a better relationship between the UK and the EU, it would likely only facilitate equivalence in some specific areas. Agreeing a wide-ranging equivalence deal on the basis of 'we both have high standards' would still be difficult. 

Why? The problem is that the Brexiteer account of the argument is an incomplete picture. The mere existence of similar rules is only part of what makes law meaningful. How rules are made or changed and how they are enforced are two more vital pillars that give strength to any rulebook. 

The frictionless trade within the Single Market is not simply based on a common set of rules, it is also tied to shared courts to interpret them, shared agencies to police them and shared institutions to modify them. In other words, it goes far beyond the relatively simply act of comparing two legal texts and seeing how similar they are - you need two separate legal and political systems to operate in concert and to do so indefinitely. 

It is not, to put it mildly, reasonable or realistic to expect the EU to believe this would work (nor is there any reason why those on the UK side should believe in it either). 

And even if you were willing to believe that it would work initially, you would still logically want some kind of safeguard. After all, who knows what could happen in the future? Any number of socio-political changes could mean that the justification for a major equivalence deal no longer holds. So you need the ability to turn off the equivalence deal. In addition, that justification could disappear for the agreement as a whole or only for specific areas. So you also need to be able to target individual sections of the equivalence deal. 

But while you could craft such a mechanism in the world of legal theory, switching sectors from equivalence one day, to none the next and maybe returning to equivalence the day after is a recipe for chaos and confusion. Business and trade rely on certainty over the long-term. This kind of equivalence deal would risk large periods of uncertainty, particularly if political leaders are not fully convinced that the other side will always act as they would prefer (which is in fact the more likely outcome). 

And while something like an agreement on equivalence on data standards can be brought down or put up with relative speed, the same cannot be said for checks on physical trade at the border, which requires significant investments in infrastructure and personnel in order to work. It is not a switch you can flip on and off with ease. This means that your ability to respond if the other side does break the terms of the equivalence deal are much more limited than what you would want. 

So the offer being made to the EU is not just one that relies on exceptional (and, today, hard to justify) levels of trust, it is also one where if the UK were to break the terms of the agreement, it would be very difficult for the EU to react or respond. 

I've asked you to trust me with the keys to your house and, on top of that, if I do steal anything you shouldn't be able to call the police for three months.

There is nothing surprising or unusual about the EU's repeated rejection of an equivalence deal to cover most quality and health checks. The question isn't why the EU has said no, but why it would ever accept such a weak and unfavourable offer.