Curvy cucumbers and the almost invisible government of the world
By James Spencer

Libertarianism fails to account for the way we are governed – but that’s OK, every other ideology does too.

Asleep for so long

Many of us remember the story from school, or at least the gist of it.  Van Winkle goes to the mountains, falls in with strangers, drinks some moonshine and falls asleep.  He wakes up with a foot long beard, goes back to his village (where he barely recognises a soul) and gets in trouble after proclaiming his loyalty to the king because he slept through twenty years of the American Revolution.

The British version of the story is that we joined the European Union in 1973 and got out of it and now we expect to go back to the world as it was.  But the world that was there has profoundly changed in the way that it is governed and regulated. We could be forgiven for not seeing – or caring – about that when we were snoozing in Europe.  But we now have to recognise how the world works if we ever want to influence it.

Curvy cucumbers – from law making to law taking

One of the fiercest battles in the European referendum was that over cucumbers and their curvature.  Europe bans cucumbers that have a certain curvature said the Eurosceptics, pointing to a European directive.  No it doesn’t said the Remainers, the European directive was overturned by the European Commission.  But, the curvature was still legally enforced.

On 15 June 1988 Commission Regulation (EEC) No 1677/88 ruled that Class 1 cucumbers had to be “practically straight”, which was defined as having a “maximum height of the arc: 10 mm per 10 cm of length of the cucumber”.  Then in 2008 the regulation was overturned, along with 100 pages of similar legislation by another Commission Regulation 1221/2008 leading to the birth of a “Euro-myth” that the EU regulated the curve of the cucumber.

However “repealed” is not quite the same as “not in force”.  As Dr. Richard North has pointed out the regulation still legally binds us.  That regulation 1221/2008 in clause 4 says “these standards should be those as set out in the standards adopted by the United Nations Economic Commission for Europe (UNECE)”.  UNECE is interesting as this could be the first time you’ve heard of it, but that’s not the point – well, not yet.  The point is curvy cucumbers.

Luckily UNECE has something to say, the UNECE STANDARD FFV-15 concerning the marketing and commercial quality control of CUCUMBER which for Class 1 cucumbers says that they must be “reasonably well-shaped  and  practically  straight  (maximum  height  of  the  inner  arc: 10 mm per 10 cm of length of the cucumber)” rather than the EEC’s view that they must be “well shaped and practically straight (maximum height of the arc: 10 mm per 10 cm of length of the cucumber)”.  So not a lot of deregulation after all.

And getting the facts straight(ish) on the arc of a class 1 cucumber has an enormous impact on the way we will for the foreseeable future be governed.  Europe used to make laws in areas where it now simply passes them on.  Even if we left the single market we are still going to be having laws made for us internationally, but not by Europe.

Europe the law-taker, not the law-maker

The European Union is fading as a regulatory force and is giving up its powers of initiation to a panoply of global bodies and it’s important that we understand why.

Most of the rich world now accepts free trade is a great thing and has been cutting tariffs for decades to a point where they are close to insignificant in most areas.  Technical Barriers to Trade have grown.  As we have become a more regulated society so slight differences of regulation between jurisdictions can mean that despite low tariff barriers there are still high barriers to trade, making us all poorer.

And this is why the European Union is seemingly abdicating from its role in determining the curvature of cucumbers.  The World Trade Organisation’s 1994 “Technical Barriers to Trade (TBT) Agreement” aims to reduce these technical barriers by getting members such as the European Union to base their regulations on international standards.  If we have common international standards, then it doesn’t matter where a good is produced.

Thus UNECE, which covers almost all of Europe, is a higher level body to the EU, which only covers a part of Europe and if UNECE takes a regulation then the EU will, more or less, take it as well.  And it’s not just UNECE, there’s a whole alphabet soup of regulatory bodies from which the EU takes its regulations such as the International Standards Organisation, the International Labour Organisation and the International Telecommunication Union.

So the rules that come down to us currently from Europe (and would come to us if we joined the EEA) would still come to us but in a somewhat more direct manner.  And we need to understand how.

Competing Multinationalisms

It’s relatively easy to get a handle on the European Union, even if you don’t understand the technicalities.  The European Union is visible, wide ranging and ambitious.  Essentially it wants to form a government and you can decide whether you are broadly for that ambition or against it.

The bodies from which the EU – and the UK – take its standards and regulations are low profile, narrowly focussed and technocratic.  They don’t aim to be a government, they aim to help governments improve and harmonise their regulation on often very narrow areas.  And they come in a wide variety.  Some of these are regionally based, some are global.  Some are sub-bodies of the United Nations, the OECD or other organisations and some stand on their own.  Some of them like the International Telecommunication Union (set up as the International Telegraph Convention in 1865) have a long history and others are more recent birth and temporary life.  They have a bewildering array of philosophies, competencies, procedures and compositions and can tread on each others’ toes.

The European Union largely absolved us from needing to know any of this.  In 1973 it essentially wanted to make the laws, in 1992 it gained that right and from 1994 it gradually abdicated this to a growing number of standard setting authorities throughout the world, although it still pretended to make the laws.  The origin changed, the transmission mechanism remained the same.

And the good news is that within a relatively short time the UK, rather than simply accepting these rules, will now be proposing and shaping them.  We have traded one top table in Brussels for hundreds of top tables, if only we knew where they were.

Libertarian irrelevance

And this is the Libertarian problem.  Essentially Libertarianism deals with a world where governments make all the important legal decisions albeit constrained by market forces. Governments could be democratic or otherwise; federal, unitary or supra-national.  But governments would make the decisions.

Today’s international regulatory framework is different from our textbooks.  Although in many policy areas governments are still in control, in a growing areas of economic activity the rules are partially or wholly decided somewhere else.

There is a doctrinaire libertarian response to this – opt out of the lot of them.  After all if the government is not going to regulate cucumber curvature, there’s no point in adhering to some alphabet soup regulator or other who’s telling you to do so.  By all means allow exporters to adhere to these to get into markets or retailers to reassure their customers, but don’t bring it into the legal code and weed out those that are already there.

Alternatively we could embrace this, which at least would make more sense than those free market types who, bafflingly embraced the European Union.  The intent of these regulations, to lower barriers to global trade, are good and the lack of democratic accountability and participation may seem a feature rather than a bug to the more elitist libertarians.

There are approaches that neither accept nor deny them.  The UK could use its membership of these organisations to bring greater transparency and wider participation. We could ensure the regulations are only brought in to the minimum standard, rather than being used by governments as an excuse to introduce extra law without debate. Some codes may be voluntarily applied to the domestic market, if this is realistic.  We should also intelligently debate which organisations we subscribe to and which we politely ignore.

But this article is not about which approach we should take towards this situation, it’s just that we need to actively consider it.  Most Libertarian thinking does not, but then that goes for every school of thought with the partial exception of the anti-globalists.  We debate policy about schools, taxes and food regulation as if our elected representatives informed by domestic debate are the ones making the essential choices.  In a wide, and ever growing area, they are not.