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Friday, 3 February 2017

As Bad as it Gets: the White Paper on Brexit




Professor Steve Peers

Yesterday the UK government released its White Paper on Brexit. This tome was reluctantly extracted from the government after months of prompting, but is in the end enormously disappointing: the political equivalent of a cat coughing up a hairball.  

As many had expected, the white paper is basically content-free. It's essentially Theresa May's recent speech (which I analysed here), in some cases word-for-word, with a few statistics and graphs added. But even this information refers back to the status quo, and in some cases is inaccurate (a graph suggested British workers get 14 weeks’ paid holiday a year, before it was corrected), out-of-date (the 2011 statistics on UK citizens resident in the EU), or only partial (the migration statistics omit Irish people in the UK, and vice versa).

There’s no proper analysis of different options relating to the UK’s post-Brexit future, with assessments of their relative pros and cons. But then there couldn’t be: the White Paper says little of substance about the very existence of those options. David Allen Green has pointed out that the initial version of the document was time-stamped at about 4am, giving the strong impression it was written overnight by an intern working to a deadline in a student-like coffee-fuelled flurry.

Detailed comments on the White Paper

The paper begins with a collection of sentence fragments from the Prime Minister, centring on the bizarre claim that 65 million people are “willing” Brexit, simply ignoring the 48% who voted against it. By and large, it goes downhill from there.

Having said that, there is a little bit of detail on plans for the ‘Great Repeal Bill’ (previously discussed here and here), which will convert existing EU law into UK law. This White Paper confirms that there will be a further White Paper on that Bill. The latter Bill will retain EU Regulations in UK law, not just EU Directives, which are referred to implicitly (as “all laws which have been made in the UK, in order to implement our obligations as a member of the EU”).

This is an important legal point because by their nature as defined by EU law, Directives have anyway been implemented as part of UK law already. Regulations usually have not, and so would vanish unless some steps were taken to retain them. (Regulations are more commonly used in areas which EU law has more fully harmonised, whereas Directives usually apply in areas where there is less harmonisation).

Interestingly, the White Paper says that the ex-EU law should be interpreted post-Brexit “in the same way as it is at the moment”. This suggests that the case-law of the EU courts will continue to be relevant, even though those courts are loathed by many Brexiteers. It remains to be seen exactly how this approach to interpretation will be secured outside the EU; the most obvious route is to insert language to this effect in the Great Repeal Act. There’s a weasel word which isn’t further explained (“Generally”), and two obvious questions aren’t answered: what about post-Brexit EU case law, and what about EU legislation which is amended after Brexit?   

After Brexit, it will be up to the UK to amend ex-EU law. But who will have the power to do this? There’s a little bit of detail about this key question. Any “significant policy change” will be the subject of an Act of Parliament, which means that the House of Commons and the House of Lords will have a full debate and every chance to table amendments or block the government’s plans. There will be Bills on customs and immigration, “for example”.

But there is also a commitment to a “programme of secondary legislation”. This refers to various methods of the government making laws, with limited power of Parliament – usually only one chance to examine the draft law briefly, with no chance to amend it. The White Paper refers to this as “oversight”, but it’s not very substantial. By process of elimination this is how the government will make changes to other areas of ex-EU law, besides customs and immigration – environment and employment law, for example. The White Paper says it wants to remove “deficiencies” in the ex-EU laws; but one woman’s “deficiencies” are another woman’s clean beaches.

Next, the section on “taking control” of UK laws starts with the remarkable statement: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” The Supreme Court’s Miller judgment indeed recently confirmed that Parliamentary sovereignty did not vanish while the UK was an EU member, since the effect of EU law in the UK was dependent on Parliament’s decision to keep the European Communities Act in force, Parliament could have insisted on blocking the domestic effect of any EU law by expressly deciding to keep Acts of Parliament conflicting with that EU law in force.

But let’s step back from the legal details. This is an astonishing statement. One of the best-known slogans of the ‘Leave’ side in the referendum was ‘take back control’. Yet it’s conceded here that we already had control. The problem is the feeling that we didn’t have it.

So...what prompted that feeling? Could it be the consistent lie that EU law is adopted by ‘unelected bureaucrats’, which is a simple falsehood about the nature of EU law-making? (As discussed here, EU laws are jointly adopted by national ministers and the elected European Parliament; the UK votes in favour of proposed laws over 90% of the time). Needless to say, the White Paper doesn’t refer to that fact. Rather it overstates the impact of EU law in the UK, by means of a dodgy statistic which includes ‘soft law’ (non-binding measures like Recommendations, Communications, Reports and Opinions) in the total number of EU documents sent to Parliament.

Next, the White Paper points out correctly that there is no need for the EU courts to have jurisdiction over agreements between the UK and the EU. Indeed, the EU rarely asks for this with other countries (although the EU courts do rule on how such treaties should be interpreted by the EU). I’ve always suspected this focus on the EU courts is a red herring – so that the UK government can declare a ‘victory’ by resisting something that the EU might not even ask for.

Moving on to devolution, the White Paper details various means of talking to the devolved administrations – ignoring the simple fact that the government has already ruled out following any of a number of options (discussed here) which the Scottish government presented in December.

There’s a special section on Northern Ireland, listing facts but not giving any idea of how reinstating border checks between the Irish Republic and Northern Ireland can be avoided. I’ve referred before to Brexiteers’ apparent belief in a ‘Brexit Fairy’ who will magically solve all problems which Brexit might create. The Irish border issue seems to be a task for her culturally-appropriating cousin: the Brexit Leprechaun.

In passing, this section refers to the common belief that the status of Irish citizens in the UK is guaranteed by the Ireland Act 1949. As far as immigration status is concerned, this is questionable, as detailed here by Professor Bernard Ryan.

Next, the White Paper deals with immigration, referring to “public concern about pressure on public services, like schools and our infrastructure, especially housing, as well as placing downward pressure on wages for people on the lowest incomes.” There’s a mysterious absence of statistics to back up these claims, perhaps because they are shaky: see this recent summary of economic literature on migration, by Professor Jonathan Portes. But who needs evidence, when we can just poke a finger down Nigel Farage's throat? And if public services are so badly affected by EU migration, why no mention of the famous £350 million/week which would be supposedly made available for the NHS?

It’s striking that this section refers to possible ‘phased implementation’ of new rules on immigration of EU citizens. This seems to be the euphemism for an interim agreement with the EU – which would presumably entail retaining a limited version of free movement of people for a time. The issue is likely to be a key bargaining point in negotiations.

The next section deals with existing UK/EU migrants. The government repeats its mantra that it wants to secure their status, but there are no specifics on what "securing status" means. The banality of political waffle could not be waived to suggest anything more concrete for millions of people worried about their future. (For detailed suggestions on this issue, see the recent British Future report, discussed here).

Moving on to employment rights, the White Paper repeats a government promise to retain EU employment protection. But as I noted above, there’s no mention of safeguarding those rights by means of needing an Act of Parliament to amend them. As others have pointed out, there are weasel words here: “strengthening rights when it is the right choice for UK workers” and “maintain the protections and standards that benefit workers” (emphases added). There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation.

This section includes the usual assertions about UK employment law being better than the EU version. This is true in some ways, and there are some issues that EU law has nothing to do with (for instance, the minimum wage, which the White Paper rambles on about). Yet, as I discuss in detail here, there are a number of areas where EU case law extended workers’ rights in the UK: holiday pay for UK workers with fixed term contracts, who are on commission or have extra allowances, to take just one example.

Moving on, the section on trade and economic cooperation re-iterates the intention to sign a free trade deal without considering the relative advantages of staying part of the single market. There are wildly empty statements about future EU/UK cooperation. The government wants "civil judicial cooperation" to continue with EU. But in which areas? (There are general EU rules on civil and commercial judgments, but also specific rules on insolvency, recognition of divorce and child access rulings, and maintenance payments).

Similarly, the White Paper lists many EU economic laws, but which would the government like to remain part of: competition law? The EU trademark? The unitary patent? EU data protection law? (On the latter issue, where there is a particular risk of disruption to trade flows if the UK does not retain laws nearly identical to the EU’s, see my discussion here).

The discussion of Euratom, the atomic energy treaty linked to the EU, implicitly suggests that the UK energy industry would benefit from a cooperation agreement with Euratom post-Brexit (see further discussion here). But the government is unwilling to say so, due its general paranoia about revealing its intentions. Yet even Homer Simpson – the world’s most famous employee of the nuclear industry, but also the dumbest – could guess the UK’s negotiating plans here.

Equally, the White Paper supplies interesting statistics on the usefulness of EU criminal and policing laws, and asserts the government’s continued interest in playing a role in EU foreign and defence policy. Yet again, there’s no detail on what the UK would like to participate in. (Some further comments on the criminal law and policing issues here).  

Overall, the White Paper is largely devoid of content because the UK government’s concern about negotiating secrecy. While of course some of the government’s position needs to remain confidential, I have to point out that treaties aren't negotiated with actual playing cards. They are negotiating by tabling draft texts – and so the EU is bound to see what the UK is asking for, once talks start.

The government may in fact be concerned about a different issue: being embarrassed in front of the British public, by asking for things it doesn’t get. But here, it’s being a little na├»ve. In my experience, officials from the EU and its Member States love to talk. And little birds leak a regular flow of EU documents to the Statewatch website. Even if UK officials keep as quiet as mice, the EU side will sing like canaries.

Finally, the “we can’t show our cards” argument reminds me of a rather relevant anecdote. Years ago, in the dying days of the Soviet Union, I went on a trip to Moscow as a member of the university debating club. After several days there, our stomachs were rumbling from the effect of central economic planning upon the supply of edible food. So some of us took refuge for the evening in the Canadian embassy, where there was decent grub and beer. (We’d drunk…enough vodka by that point).

Following a frenzied supper, we started to play cards. We’d never played cards with each other before, so didn’t know what to expect. One of my friends kept on asking the dumbest, most basic, questions about the rules of the game. At one point he even showed one of the cards in his hand to all of us, asking “So what should I do with this? Is it a good card?” Everyone laughed, and no one took him seriously as an opponent. At the end of the game, lo and behold, he had the best hand by far, and won easily. It turned out he knew the rules perfectly well, and his pretence of complete ignorance had been a perfect bluff.

Well…everyone in Britain had better hope that this is exactly the government’s real Brexit strategy. The horrifying alternative is that the government really is as dumb as it looks.

Barnard & Peers: chapter 27

Photo credit: Wings Over Scotland

21 comments:

  1. Excellent analysis!

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  2. Thanks for this accurate analysis. It's just a "white" paper and means nothing like :Brexit means Brexit.I remember Farage saying that he wouldn't have accepted a 48/52 result in favour of Remain. Anyway what worries me is that the Government seem not to care about EU citizens living in the UK and how they feel. There are also old people whose health is affected by uncertainty. Kind Regards. Laura

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  3. Excellent and (IMHO) scarily accurate. Much appreciated.

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  4. Simple question. If we have a great repeal bill that enshrines EU regulations in our law, is there a mechanism for these to be kept synchronised, in the vent they are changed at the EU level.. If there is not then these can become obsolete almost as soon as the vote is taken to approve the bill.. Also if those regulations include a financial element, either the direct funding by the EU, again how can this be enacted ito our law if we are not in the EU? Can you explain?

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    1. There could be a mechanism; as I say the White Paper avoids the issue. Most Regulations aren't about EU funding. For those which are I assume the government will just repeal them from the statute book (I don't see a case for an Act of Parliament re those laws) or, if a transitional deal keeps UK participation until 2020 (the end of the current EU budget cycle), the Regulations can stay on until then. They will expire then anyway, so the issue takes care of itself.

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  5. Thank you for the comprehensive coverage and analysis. One murmur, the implications of the UK/Irish Republic/Northern Ireland issues does not really take account of how to deal with movements between the other 26 (or more?) Member States travelling in to the Republic and onward.

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  6. What is this "UK Law" spoken about? As far as I am aware, in the UK, we have English Law and the entirely separate Scots Law.

    There are, I understand, mechanisms in place whereby English Law and Scots Law may be co-ordinated and equalised, but, "UK Law" - not sure about that.

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    1. I'm referring to any laws passed by the Westminster Parliament which apply to the entire UK - it seems reasonable and clear to refer to that category of law as 'UK law'.

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  7. Thank you Steve for the great analysis from a lawyer's view.
    I particularly like the annual holiday of 14 weeks.
    The content was stitched together in the early hours of the morning. How can anyone take May's government seriously.
    Thank you again.
    Barbara

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  8. What a great analysis - many thanks.

    Question: Around what time in the process do you reckon UK will actually have to put forward draft texts of their proposals? I would imagine at a fairly early stage once the process has been agreed, and that the ball will be 100% in UK's court. It worries me to see this white paper that has taken seven months to generate (even if only for internal government use there would have to be documented options, decisions and assessments to ensure agreement and direction) so completely lacking in substance - what can possibly be created at a reasonable quality in the next six months? EU27 will clear written content in order to discuss.

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    1. Good question. I assume the first draft texts will be tabled at an early stage of the talks. I don't know whether the EU will table its own ones, or simply react to the UK drafts. UK citizens have to hope that civil servants have drafted something competent for the Brexit talks, rather than this empty tosh served up to the public.

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  9. Thanks for this analysis. Especially sad that the Govt. is using totally out of date statistics for their citizens in the EU.

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  10. I do not understand how the Great Repeal Bill can replicate EU law into UK law. EU law contains mutual obligations between EU states. The UK can legislate to fulfil its obligations after Brexit, but cannot hope to enforce that EU member states continue to meet their previous obligations towards the UK.

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    1. Some EU laws, like most employment laws and some aspects of environmental laws, are about harmonising domestic laws, rather than cross-border links. They can easily be converted to UK law. But I agree, cross-border laws (like the laws on mutual recognition of civil and criminal judgments, for instance) can't work unless there is agreement with the EU to that effect.

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    2. You're right. This document, filed by one of the parties in the Supreme Court, nicely explains the non-replicability in domestic law of many EU laws and rights. https://www.bindmans.com/uploads/files/documents/Article_50_written_case_4PM.pdf

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  11. What will be interesting is what happens when our 'new trade deals' conflict with existing legislation passed into UK law by the 'Great Repeal Act'. For example, when we are forced to accept GM foods without labelling, growth hormones in beef, pork and lamb, and chicken whose salmonella infections have been 'remedied' by soaking in chlorine, will the trade deal be dependent on the repeal of the respective legislation after the GRA? Or will this be facilitated by some kind of sleight of hand by government? I doubt very much somehow that we will have much of a say on our loss of food safety regulations.

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    1. Presumably that's one reason the government will likely propose in the Great Repeal Act that it can repeal most or all or EU law without Acts of Parliament. There will then be limited parliamentary power to control either the main deal or the standards which are lowered to implement it.

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  12. Steve,
    Can you enlarge a little on the consequences of the GRB affecting directives but not regulations? I have a dim memory that all the really important bits about CRD/CRR are actually in the regulation, so would EU banks based in London face a sudden change in their regulatory status here (one that would naturally incline them to relocate more jobs back to home markets)?

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    1. The White Paper says explicitly that Regulations will be converted into UK law, and implicitly that Directives will be. It's hard to know yet what actual substantive impact that will have, besides the absence of the possibility for UK courts to ask the ECJ questions.

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  13. If you turn to the section on Higher Education, it contains some of the strongest arguments in favour of remaining in the EU: e.g. 10.12 "One of the UK's key strengths is in international collaboration", and in 10.13
    10 .13
    "The UK has a proud history of leading and supporting cutting-edge research and innovation within the EU. We are an active participant in Horizon 2020, the EU’s main funding instrument for collaboration on research and innovation. In addition, the UK has played a major part in developing the main EU space programmes, Galileo and Copernicus, which have supported the rapid growth of the UK space sector and contributed directly to our prosperity and security. The UK was a founding member of the European Space Agency, to which we recently committed €1.4 billion in cutting edge research and development over the next four years. The UK has also been a driving force behind European and international research on nuclear fusion."
    It then lamely concludes: "As we exit the EU, we would welcome agreement to continue to collaborate with our European partners on major science, technology and research initiatives"
    Meanwhile, those European scientists who are not already planning to leave the UK are feeling increasingly anxious about their futures.

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    1. Indeed - although to be fully accurate, the European Space Agency is not an EU body.

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