One of our key arguments is that the EU obscures the vast matrix of international governance that sits above the EU. Much of what we assume to be just another EU directive is the culmination of several years of back room efforts starting at the very top of the global governance chain, conducted in secret to all intents and purposes.
If you are one of the officials or specialists involved you would protest that such was not conducted in secret, but insofar as anybody in the media is concerned, it does not exist and wouldn't think to look for it. It is an open secret, there for all to see if only one chooses to look. It is these treaties and conventions that set both the agenda and the legislative timetable for the EU Commission.
Mapping the processes preceding the EU adoption is no easy feat, not least because there is no single path to follow, no commonality in the participants and highly fluid relationships between them. The comprise of industry bodies, NGOs, unions, government delegations, UN bodies, technical agencies and standards bodies.
Such a process exists to deal with subjects as diverse as road safety, food marketing, ocean pollution, water quality, forestry, electronics - you name it. Global trade requires global regulation and global problems require a common approach to solutions. One such focus is counterfeiting of goods and food fraud - which also encompasses the tobacco industry. Given the scale of the elicit trade, it results in massive revenue loss for governments. Up with this they will not put.
On 12 November 2012, the WHO’s Framework Convention on Tobacco Control (FCTC), ratified by 178 countries, adopted by consensus the Protocol to Eliminate Illicit Trade in Tobacco Products. This was the culmination of more than five years of complex negotiations at inter-governmental level.
The Protocol contains a range of provisions and obligations for Governments who ratify this instrument, including measures and standards in the areas of Supply Chain Control. Significant work will be required by the Parties to define what each of the provisions mean in practice within their own legal frameworks. Some of the key obligations deal with Supply Chain Control and is seen as the heart of the Protocol, commonly referred to as ‘Tracking and tracing’.
By the time UK industry had become aware of it, it appeared on their radar as an EU initiative. The Federation of Wholesale Distributors reported it as thus;
A European Parliament proposal to force tobacco wholesalers to track every outer of cigarettes and rolling tobacco is a burden on those who operate within the law, rather than a deterrent to those who break it, says the Federation of Wholesale Distributors. The EU Tobacco Directive announced today is intended to strengthen the rules on how tobacco products can be manufactured, presented and sold.
It will introduce compulsory record keeping on the movement of tobacco goods through the supply chain “in order to strengthen the fight against illicit trade and falsified products.” This will impose enormous administrative costs on distributors who already operate on tiny margins. UK wholesalers who work within the law say it should be duty-avoiding importers and manufacturers of counterfeit cigarettes who are restricted by legislation, not them.It would be unfair to say that the media was wholly negligent in that a fairly thorough report appears on Reuters but makes only a passing reference to the convention. As far as any of our newspapers are concerned, this is "Crazy EU red tape" fodder for their hacks - if they bother to report it at all.
The major objection from the big international tobacco firms - Philip Morris International, British American, Japan Tobacco and Imperial Tobacco already use a track and trace system called Codentify, developed by Philip Morris, which they say works perfectly well. They do not want to have to add costly third-party systems to their massive operations, which turned out more than 2 trillion cigarettes last year.
"Our biggest concern is proprietary solution providers pushing unproven solutions on to governments," said Daniel Hubert, BAT's supply chain tracking and verification program manager and a director of the Digital Coding & Tracking Association (DCTA), a group made up of BAT, Philip Morris, Japan Tobacco and Imperial.
This prompted DCTA to attempt a "trojan horse" effort by using its "lobbying" influence at CEN, the European Standards agency. Since the standards embodied in the regulation give the substance to regulation, there seemed to be the logical place to attempt to influence the law outside of EU processes. There was an attempt to push their own packaging standards as the primary standard.
In anticipation of regulation industry very often conspires to self-regulate in order to mitigate the effects of regulation imposed upon them. It is a collaborative effort that seeks to balance the needs of the industry with the purpose of the law. The development of enables market players, in all their diversity, to adopt a self-regulation approach. This in part is why organisations like DCTA exist - and are often involved at the very top in the formation of global conventions.
It is through participating in ISO and CEN that they can influence the substance of laws largely without the law-makers noticing. Except in this instance, the EU noticed. A top Commission health official intervened to scuttle the campaign and told CEN to keep out of the way. A fuller account of the dispute appears in this report. It must be read in full.
As far as the Europhiles are concerned, this is an example of Brussels clout overcoming the might of the evil tobacco companies (because everything they do is evil, right?). Maybe so. If you're a classic leftist, this is the EU doing what it is supposed to do in being a counterweight to corporate lobbying - and it's all the better propaganda in this instance in that the antagonist is a tobacco consortium.
However, one might also conclude that in any other instances with a different industry involved, that "corporate lobbying" is fighting to protect jobs and defend us against burdensome regulation - and such lobbying could very well garner support from super-unions within the various structures. It's really a matter of perspective. To side with the EU on this really rather depends on how one evaluates the effectiveness of the proposed measures - and who was lobbying for the complex and expensive watermarking system the tobacco firms must adopt.
This simple mantra of "corporate lobbying" is often invoked as though it were a uniformly bad things when in fact the involvement of industry is an essential part of the consultative process. Associations of large and small companies flexing their influence at all levels should be seen as a healthy thing to ensure the right balance is struck between the needs of employers, workers and consumers.
What is apparent is that there is a schism in the system in that there are distinct overlaps between the parties involved, with considerable overlaps of competency, duplication and one hand not knowing what the other is doing. We can certainly argue that the standards bodies should remain independent but it is clear there is a much greater need for oversight. In all such instances we must ask to whom are they accountable?
Across the board we see technical agencies and quasi-regulators, from CEN to the IMO, insisting they are purely technical, wither in the light of day, and seek desperately not to be politicised. By that they mean democratised - but when such bodies control the roll-out of standards and codes of practice, and to an extent when they come into force, we can reasonably say that these are arms of government.
Moreover, these bodies list themselves as charities and trusts, funded by the corporates themselves, along with, as we have previously noted, philanthropic trusts such as Bloomberg and the Gates Foundation, whose agendas are largely known only to themselves. The fact that large donations to Interpol come from some of the very companies they are investigating should raise a few eyebrows.
Eurosceptics have it that the EU is corrupt and unaccountable, but as it happens, while there is corruption it is the more transparent entity in the multi-agency make up of international law. And if at this point you have concluded that I don't know what the hell I'm talking about, you would be absolutely right. That's the point - very few do - and some of the comments from officials in the report I linked to are illuminating. "This backflip left industry observers aghast. “Frankly, it does not happen that often that the Commission manages to put a technical committee on ice,” said an expert working on standards."
Wrapping this up, I am unable to offer any hard and fast conclusions, except that it is another piece of the puzzle in how corporates dominate the global governance agenda, often using specialist lawyers to muzzle various agencies, who themselves are far from transparent. Agreements between such agencies, like the Vienna Agreement of 1991, are of major significance, bringing about a global hierarchy in standards and essentially a global regulatory framework, yet the institutions are largely accountable to no-one.
If it is practically unheard of for even the EU to put the brakes on technical committees who steer the substance of regulation then the europhile claim that the EU affords us clout simply doesn't hold water. Given that MEPs are largely ignorant of the process and the Commission being largely unaware of what it is adopting on our behalf, there is a clear case for Britain acting independently and re-tasking Westminster on far more robust scrutiny than is presently applied by the EU.
What we need is a re-purposed government which is fully aware of, and engaged in, the process of adopting global conventions and being a major participant in their creation. But were you to mention any of this to the likes of say, Liz Kendall, who thinks Fraser Nelson is a considered intellect, you'd be met with a blank stare.
Westminster is presently an adult crèche where the real business of governance seldom ever intrudes. It is for this reason that our politics and media withers on the vine and it is for this reason our politics is so corroded. It is why they are held in contempt. The public are well aware that an essential element is missing from London politics - and to hear Jeremy Corbyn dragging up nostalgic cold war politics is actually a symptom of a cultural malaise. The government has gradually offloaded the duties of legislating to bodies most could barely even spell.
The reality is that we have a rapacious regulating machine over and above the EU, hardly anyone knows it's there or the scale of its involvement, and the public have no defence mechanism against it - not MPs, not MEPs, and as for our media... fuhgeddaboudit! It's time we pulled our heads out of the sand and got our government doing what it's supposed to do. Govern.