The White Paper (WP), following the agreement of (much of) the Cabinet in early July, sets out the details of the UK Government’s latest proposal for the UK to leave the European Union. This posts offers comments on selected ‘highlights’ from the paper.
In her Foreword the Prime Minister refers to the result of the referendum vote for the UK to leave the EU. She says, “And that is what we will do – leaving the Single Market and the Customs Union, ending free movement and the jurisdiction of the European Court of Justice in this country, leaving the Common Agricultural Policy and the Common Fisheries Policy, and ending the days of sending vast sums of money to the EU every year. We will take back control of our money, laws, and borders, and begin a new exciting chapter in our nation’s history.” … “In short, the proposal set out in this White Paper would honour the result of the referendum.” (p.1)
We pick out some of the indications in the White Paper that this is not the intention; in other words, what she says is untrue.
“So we have evolved our proposals, while sticking to our principles. The proposal set out in this White Paper finds a way through which respects both our principles and the EU’s.”
We have noted before [1] that the EU is unwilling to negotiate away from the mandate given to their negotiating team, which is why we believe that the current proposal from the UK will not be acceptable to the EU Commission or the Council. The result will either be further capitulation from the UK government or the absence of any agreement – the ‘no deal’ outcome. Since this post was drafted M. Barnier has confirmed that he, on behalf of the EU, rejects the Chequers proposal, as we anticipated. That leaves the ‘negotiations’ going down to the wire, as they say. It could be, indeed probably is, another attempt to grind more concessions out of the UK government but increasing opposition to the WP makes that less likely than it was, we hope. So we are closer to a ‘no deal’ exit, unless there is some Machiavellian plot afoot. However, Theresa May has now declared she won’t allow any changes that aren’t in the UK’s interest. Since it’s clearly the view of Olly Robbins, Hammond, etc. that practically any deal is better than no deal it follows that she’ll be persuaded that practically any change must be in the UK’s interest. It’s an empty promise.
The White Paper is, of course, a political document, which has to please more than the EU. The language is political, as a public relations exercise for British consumption. The Government promises to deliver the democratic outcome of the referendum, thus: “…it will have reached a key milestone in its principal mission – to build a country that works for everyone. A country that is stronger, fairer, more united and more outward-looking.” (p.6)
The words “everyone” and “more” have two implications: first that such a country could not be built while Britain remains in the EU and, second, that leaving the EU will bring that outcome about. We wonder how many ‘Remainers’ will be convinced by such puff, though we can assume that it is aimed at Leavers, i.e. not everyone.
Also in the Executive Summary the WP claims this: “The Government will have delivered on the result of the 2016 referendum – the biggest democratic exercise in this country’s history.” (p.6)
This too is governmental PR puffery: much in the WP could fairly be described as capitulation to the EU’s mandate rather than “honour” to or “deliver” on the Referendum result.
The Executive Summary concludes with this: “…both sides will need to be confident they can trust and rely on the commitments made to each other.” (p.11)
From previous experience this is something the EU will not do (and the UK should not do). The EU has made it clear, beyond any doubt, that it expects everything to be tied up in law and so subject to the remit of the European Court of Justice (ECJ). Trust cannot be enshrined in law and we expect it to be rejected as the basis of any withdrawal agreement. A ‘red line’ for the EU is that the ECJ should have jurisdiction over all EU laws and agreements; a red line for the UK (unless it goes pink in subsequent ‘negotiations’) is that the UK should be free of the dominance of the ECJ over its own courts.
Hinting at an acknowledgement of this conflict of interests, the WP appears to offer to abandon its own red line: “Both sides will need to focus on turning the ‘Future Framework’ into legal text as soon as possible…” (p.12)
The EU had already done so [2] and the result is simply a confirmation of their initial stance. There is no reason to believe that the EU will accept, or even agree to negotiate around, the ‘offer’ in this WP; fortunately. Capitulation it may be but it remains a long way from the EU Commission’s expectations.
“At the core of the UK’s proposal is the establishment by the UK and the EU of a free trade area for goods. This would avoid friction at the border and ensure both sides meet their commitments to Northern Ireland and Ireland through the overall future relationship.” (p.13)
The EU had, in its draft withdrawal agreement, published in March, already made clear where it stands on ‘free’ trade and on Northern Ireland. [3] And this is nowhere near what the WP proposes. We must assume that the UK Government had read the draft agreement and noted how strongly it cleaves to the negotiating guidelines. [4]
“As if in a combined customs territory with the EU, the UK would apply the EU’s tariffs and trade policy for goods intended for the EU.” (p.16)
There is no “As if” about it; a combined customs territory, or Facilitated Customs Arrangement as the WP titles it, would in practice (and in law as laid down by the EU and overseen by the ECJ) be indistinguishable from remaining in the present Customs Union. The claim that, “Upon its withdrawal from the EU, the UK will leave the Customs Union” is clearly contradicted by this as-if. And as-if we needed confirmation, we find this on page 17: “The UK recognises that this approach would need to be consistent with the integrity of the EU’s Customs Union”. (p.17) The EU will define what this means.
There is soon more capitulation: “The adoption of a common rulebook means that the British Standards Institution (BSI) would retain its ability to apply the “single standard model” – so that where a voluntary European standard is used to support EU rules, the BSI could not put forward any competing national standards.” (p.20) We have seen how this works out. [5]
“To ensure that the future relationship between the UK and the EU is consistent and coherent, it should be structured around an overarching institutional framework. While the legal base that would need to be cited under the EU Treaties would be for the EU to determine, and would depend on the content of the institutional framework, precedent suggests that the UK’s proposal would take the form of an Association Agreement between the UK and the EU.” (p.84)
This notion of an “Association Agreement” is rather tentatively proposed, perhaps because it implies that such an agreement would be bound by EU laws, rules and regulations and, as such, the UK would remain under the jurisdiction of the ECJ, whatever fudge is invented to disguise the crossing of this ‘red line’.
“In areas where the UK commits to a common rulebook, where the UK makes an upfront choice to commit to ongoing harmonisation with the relevant EU rules and requirements, it will be important for the UK to be able to share its views with the EU as those EU rules are developed. While the UK would not have a vote on relevant rule changes, its experts should be consulted on the same basis as Member States in line with the existing arrangements the EU has with third countries.” (p.89)
This sounds as though the UK will retain a choice in what it commits to in a “common rulebook” but the EU has already made it clear what that amounts to. [2] It is possible to imagine the UK standing tall and the EU compromising its “integrity”, but a good deal of imagination is required in the face of a rigid EU and a pusillanimous UK government.
“Finally, if an agreement had been updated to reflect a rule change, this would become a binding obligation on both parties in international law. The agreed rule changes would also need to be given effect in UK law through domestic legislation. The UK Parliament would scrutinise this legislation in accordance with normal legislative procedure, respecting the principle that a sovereign Parliament has complete control over domestic law. This means that the UK Parliament could decide not to give effect to the change in domestic law, but this would be in the knowledge that it would breach the UK’s international obligations, and the EU could raise a dispute and ultimately impose non-compliance measures.” (p.91)
As they say, this “finally” completes the capitulation that these quotations represent. Scrutinising proposed EU legislation is something that the EU Parliament already does, to little effect. It is not possible to imagine that the UK Parliament will have a better chance of modifying EU legislation than its own Parliament has.
“Where the UK had agreed to retain a common rulebook with the EU, the UK would commit by treaty that its courts would pay due regard to CJEU case law, insofar as this was relevant to the matter before them.” (p.92)
We can discount the weasel words “insofar as this was relevant”: these softeners are included in the WP to cover the capitulation and persuade as many as possible of those who wish to be fooled into believing that this represents a real Brexit.
“As would be its right, the UK Parliament could ultimately decide not to pass the legislation, but it would be in the knowledge that there would be consequences from breaking the UK’s international obligations…” (p.95)
This is the UK Government telling its elected representatives “you will obey, or else”. We’ll let a commentator with whom we agree have the last word on the Chequers ‘agreement’:
“I think Chequers is the worst of all worlds. It does not restore sovereign self-government. It turns this country into a dependent colonial adjunct for the first time since the Norman Conquest, subject to the EU’s legal and regulatory writ but without a Council veto or democratic consent in the European Parliament. It is a formula for future conflict and is almost certain to break down within five or ten years, forcing us to go through this agonising ordeal yet again. … The Referendum was to settle the elemental question of whether we govern ourselves, or whether we accept a higher level of government that British voters cannot remove by any democratic process.” (from Ambrose Evans-Pritchard, Daily Telegraph 29/08/2018)
[4] Transition: Negotiating Directives
[5] Shorties-10: Distributed Culpability
This EU Won't Work 