24 August 2017

The Department for Exiting the EU has issued a slew of Brexit papers over the last two weeks. Jill Rutter tries to work out what they tell us about the Government’s approach.

Lesson one: Colours matter

The Government is issuing not just one type of paper but two. Position papers, like the one on Northern Ireland and Ireland, are produced in grey. These set out UK proposals for the next round of negotiations and focus on issues under discussion for the withdrawal agreement.

“Future partnership” papers, produced in blue, represent the Government thinking aloud about what might follow. As such, these are aimed as much at the domestic audience as Brussels. One of their functions appears to move the internal debate within government forward. The customs paper explicitly invites views from business – but enforcement and dispute resolution paper doesn’t.

Lesson two: We still don’t want to talk about money

The EU wants to focus on three things in the withdrawal agreement: citizens’ rights, Ireland and the divorce bill. We have now had UK position papers on the first two. But on item number three, we have  nothing more than a written answer back in July saying the UK will honour its legal obligations. This may yet represent the insuperable hurdle to talking future partnership.

Lesson three: Transition is concentrating the mind – and we seem to be seeking as near as possible replication of the status quo

The customs paper made clear that the Government has a strong preference for ensuring there is only one adjustment from EU membership to the final deal – without minimal interim changes.

That is true on customs and on data, where the Government is looking to maintain continuity until a final agreement, to avoid going through the third-country hoops of data adequacy decisions (which can take 18 months). For both these areas, we are relying on our plans to maintain convergence at the point of exit and offering to negotiate but not implement new trade agreements until we finally leave.

Lesson four: We want to be special in the longer term too

We may be leaving but we seem to want to stay pretty close in the longer term as well. The innovative (blue skies? pie in the sky?) approach on customs involves operating the UK border as if it were still the EU’s external border. Broadly, this means complex arrangements to refund tariffs and prevent goods which meet UK, but not EU, regulatory standards from finding their way into the European market. We also want our Information Commissioner to still be part of the European network of data regulators.

Lesson five: The UK Government is taking a very compartmentalised approach

This is most evident in the paper on customs. Although launched by David Davis, Philip Hammond and Liam Fox, the paper focuses only on the narrow issues of customs checks and tariffs. As we argued in our paper on frictionless trade, regulatory checks or barriers to smooth transport are a much bigger impediment to trade than tariffs or customs documentation – and a customs arrangement does not help.

These issues do get a mention – but in the Northern Ireland paper. And only in relation to the agri-food industry, where it suggests a willingness to continue to apply EU standards (and potentially submit to EU jurisdiction). While this issue is acute at the Irish border, it has big implications at every border – not to mention the implications for future trade policy.

Lesson six: There are more options on the table than it previously appeared

The positive reception of the thin and discursive enforcement and dispute resolution paper is in part because it cites a wider range of precedents, with more potential influence for the European Court of Justice (and thus potentially opening the way for closer future collaboration than previously thought). One effect of the election and the shifting power balance in the Cabinet is that there seem to be more possibilities on the table than it appeared at the time of the initial white paper in February (where some of these options were already rehearsed).

Lesson seven: The Government is still far from concrete proposals in key areas

These papers start to shade in some of the negotiation areas and begin to talk about possibilities. But in some key areas, ideas are either not worked out in any substantive detail (the new customs partnership) or there is no guide to where the Government wants to end up.

This may be because the EU is not willing to discuss future partnership until “sufficient progress” is made – and the UK judges that to be some way off. Or this may be because decision-making processes in government are so slow or indecisive that it is easier to fly kites than land agreed propositions. But we are now just over 18 months to exit, and the Government seems to be revelling in what David Davis calls “constructive ambiguity”. The problem with ambiguity is that it is a small step away from confusion – and can end up being very destructive if people on your side of the table don’t understand what they are signing up to.

Comments

I found this document excellent! I fully agree with the lessons learned.

The papers display mainly tortuous reasoning and convoluted reforms to recreate what we already have in the EU, but combined with unilateral freedoms from EU obligations. They are the "have-cake-and-eat-it" policy transferred from plate to paper. This is the reason they will fail and Barnier's reaction after these week's negotiations only serves to confirm that. They need to decide now where in viable trade-off space they want to negotiate and stop putting forward unviable options and unrealistic trade-offs.

Clive Bates

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