25 January 2017

There are calls for the Government to produce a Brexit white paper – an official statement of policy, often produced before introducing legislation. Jill Rutter argues that it would be good practice but not necessarily enlightening. 

Parliament will now get a say on a bill to trigger Article 50 thanks to the Supreme Court. But in the Commons yesterday, and in the media today, many MPs are demanding a government white paper setting out the Government’s case for its approach to Brexit. 

Those pleas were rejected by Brexit Secretary David Davis who argued that the Prime Minister had given MPs all necessary detail in her plan unveiled – not to Parliament but to assembled diplomats and media at Lancaster House last week. As we said at the time, that made clear some of the Government’s objectives – but there were still a lot of questions left.

But would a white paper help answer those questions?

A white paper would give the Government more space to set out its assessment of the various options it has considered, and the reasons it had chosen the approach it had. An accompanying impact assessment would enable the Government to lay out what it thought were the implications of the approach it was choosing, including costs and benefits. 

It would, in short, be an opportunity for the Government to share the analysis ministers have been poring over for months and help the public better understand why it had chosen the approach it had. And it is good practice to show the Government’s workings in any area of policy.

But there is no reason to think that a white paper would do any of this. There are no rules about what a white paper contains, other than a command number. The white paper the Government produced setting out its negotiating position on the Lisbon Treaty in 2007 simply explained the provisions and then had a brief comment on the line the Government proposed to take, and was only 12 pages long (other than prefaces and annexes).  

 A more general analysis of government documents show that while some go into helpful detail on the rationale behind policy, set out the evidence basis, assess alternative options, many simply assert objectives and the way forward. 

A Brexit white paper might do no more than repeat the Prime Minister’s plan as laid out last week

There is more discipline on impact assessments. Government is supposed to produce these for any regulations that impact business or the voluntary sector on a standard template. They have to be submitted to the Regulatory Policy Committee (RPC) which rates the quality of their assessment. Those judged to be poorly done are supposed to be redone before the measure can proceed.

The Government will have to produce these for many of the consequences of Brexit – new immigration controls, potential customs checks – and will have to do a jumbo one for the Great Repeal Bill. But it is likely to argue that the Article 50 bill does not in itself impose new regulatory burdens and therefore this is not needed. And it would be a brave RPC that stood in the way of the will of the British people. 

So if the Government does not feel the need to divulge more than it did last week, demanding a white paper may delay the tabling of the bill – but may not do much to enlighten or inform. Parliament would still have to find other ways of forcing the Government to be more explicit about the impact of the choices it has made – either through detailed questioning in the House – or forensic scrutiny in committee.  

Comments

What I want parliament to do is to tell the government to present a fully worked example of how they would calculate our external schedule of tariffs and quotas for several interesting products (beef & citrus perhaps), and a plan on how they intend to complete that work in the two year timescale before starting the clock ticking.

The second thing I want them to do is to present a fully worked example of transposing an EU regulation into UK law, as they intend to do under the great repeal act. This would expose various problems and things that become illegal to do in the UK under UK law because we are not a member state, or it would require our courts to notify EU member state courts in ways that can't be reciprocated if we are not a member state etc. Plus they should present a plan on how they intend to complete that work in the two year timescale before invoking article 50.

Thirdly, I would like the government to explain in detail what a transitional arrangement is. What goes on the front cover of the document it is written in? Who is a party to it? What gives it legal effect? What can and can't be covered in a transition. Normally transitions are written in the destination treaty, if we are going to WTO rules then there is no destination treaty in which to write them. The government needs to explain how they think this will work before invoking article 50.

None of these in any way whatsoever expose the government's negotiating strategy or weaken our position. Every one of them strengthens the credibility of our "walk away" option.

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