12 July 2018

After setting out six tests for the Brexit white paper, Jill Rutter says it moves a considerable way to clarify the UK’s ideas for the future relationship – but leaves a big question mark over the Irish backstop.

Ministers and officials have been agonising for months about the content of the Brexit white paper. It has finally been published, months after it should have been. Assuming it survives the upcoming bout of parliamentary and political turbulence intact, does it clear the way to a political declaration on the future relationship in the autumn?

Test 1: Is the white paper comprehensive?

We argued that the white paper needs to cover all the headings under which the UK is seeking future cooperation with the EU. It does that by covering both the economic partnership and – unlike the statement issued after the Chequers Cabinet – the security partnership as well.

The white paper puts more flesh on the institutional processes: how the UK would keep in step with the so-called “common rulebook” and the procedures it envisages to govern the future relationship.

But some areas are thin. The discussion of the future of the UK services sector – much bigger than goods – is cursory outside financial services. Nothing is done to explain the benefits the UK sees from future regulatory flexibility and why they outweigh the benefits of staying within the Single Market.

And although it deals with customs and regulatory checks at the border, the white paper fails to make clear whether the UK wants to stay part of the VAT area (indeed, by rejecting any EU interference in tax rates, it suggests not).

Finally, the white paper adds mention of new “cooperation accords” in areas such as culture and education, space and overseas development.

VERDICT: Pass, but more detail needed

Test 2: Does the UK have "realistic and workable" proposals?

The trickiest issue looks to be the hybrid customs arrangement, which is massively convoluted. As the white paper itself appears to acknowledge, this opens the way to huge potential for fraud.

Many will wonder whether the “phased implementation” ever happens or whether the creation of something that operates “as if” it were a “combined customs territory” is just a route to stay in a customs union. But it also assumes that the EU willingly subcontracts its border to a third country.

The UK also assumes that the EU is willing to divide the Single Market between goods and services – and divide the EU acquis between rules that affect cross-border trade and those that don’t. That, in turn, also assumes that the EU is prepared to no longer insist on freedom of movement and instead accept a pared back “mobility agreement” of a type that the UK would be prepared to offer other countries.

It also proposes for the first time a multi-layered governance structure for the relationship, and processes for enforcement and resolution of disputes. Some sort of institutional framework is a prerequisite of a relationship with the sort of depth the UK is seeking – and should form a reasonable starting point for discussion.

VERDICT: Progress made, but big questions remain

Test 3: Does the white paper make it clear where the Government has moved?

The EU has refused to recognise for that the UK de facto accepts a continuing role of the European Court of Justice (ECJ) – albeit with no “direct effect”. The white paper does make more explicit that the UK would accept the ECJ’s jurisdiction over any agencies it participates in, and gives the ECJ a much bigger role than UK has conceded before in interpreting EU rules the UK has agreed to abide by. 

Michel Barnier should no longer be able to claim this is a red line. It is also clearer on which EU rules the UK regards as in scope for the “common rulebook”, and offers more explicit assurances than before on some of the level playing field concerns.

VERDICT: Pass

Test 4: Has the UK taken any account of the EU’s positions?

We wondered whether the white paper would show any signs that the Government has listened to the EU. And there are some signs. For example, the European Parliament steering group has welcomed the fact that the UK has said it would like an Association Agreement – something they have been proposing. And the UK does echo EU language about balancing rights and obligations, albeit a “fair but different balance” and respecting the legal autonomy of the EU.

To get a better deal on policing cooperation, the UK makes an explicit commitment to staying in the European Convention on Human Rights, something Barnier signalled as a prerequisite for ongoing cooperation.

But there is one area where both parties look to be setting the course for a head-on collision: fish. The UK is clear it is taking back control of its waters and will only concede access through annual negotiations. The EU is making agreement on access as now a condition of a trade deal.

VERDICT: Mixed

Test 5: Is the UK position underpinned by evidence, analysis and external input?

There is no accompanying assessment of the Government’s approach and choices against any alternatives. And although government does seem to have listened to the worries of manufacturers, its proposals are now attracting the ire of many in the services sector – for whom it is offering to “seek the best possible arrangements” (e.g. for broadcasting) without any proposition about what that might look like.

The white paper offers zero evidence of the benefits these sectors will gain from future flexibility or trade deals to set against their loss of access to the EU – or their loss to the UK economy.

VERDICT: Fail

Test 6: Does it solve the question of the Irish border?

The Prime Minister has been accused of seeing everything through the prism of the Irish border – and that comes through in the white paper. 

It makes clear that the Government has taken the Irish issues seriously in its long-term proposals. If accepted, the proposals would (subject to the VAT point above) meet Irish concerns, which is why the Irish Government has welcomed the white paper.

But before we get to that, we need to get past the Irish backstop. And on that, the white paper simply reproduces ambiguous wording from Chequers about the proposals “ensuring that the operational legal text the UK will agree with the EU on the ‘backstop’ solution ...will not have to be used” – without any further indication of what that text might be.

To make progress the Government needs to clarify what that means. 

VERDICT: Short run fail, long run pass

Further information

Read our Explainer on the Brexit white paper.

Comments

One of your questions is to ask if the UK government has taken any account of the EU's position. But you don't seem to care about whether the UK government has taken any account of the UK electorate's position in the
referendum vote. If we care about the future, surely we don't want to destroy what remains of trust in democracy?

The question of the Irish border wasn't on the ballot paper in June 2016 and it was hardly mentioned in the campaign - certainly not by the Leave side. Yet, as Jill points out, it is the one issue above all which the UK and the EU agree has to be solved. The Belfast Agreement pre-dated the referendum and morally if not constitutionally takes priority.

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