EU/UK Dispute resolution post-Brexit in the light of the White Paper

Catherine Barnard and Emilija Leinarte*

*Professor of EU law, University of Cambridge and PhD student, University of Cambridge. This research has received support from the ESRC’s UK in a Changing Europe programme.

The recent report published by UK in a Changing Europe discussed different governance structures that could potentially regulate UK-EU relations post-Brexit. The now published White Paper provides insight into the sort of institutional framework the UK will seek from the EU upon its withdrawal. Is there merit in the UK’s proposals? Are there alternatives? We look into the options for the dispute resolution mechanism post-Brexit.

Institutional arrangements

The White Paper suggests that the governance of the UK-UK relations could be laid down in an association agreement (AA). The agreement would provide an overarching institutional structure which would cover the majority of the individual agreements for different elements of economic, security and cross-cutting cooperation. The form of economic cooperation is likely to be concluded in the form of a mixed free trade agreement (FTA).

The White Paper suggests governance through two main institutions:

-          a Governing Body which would set the general direction for the future relationship and,

-          a Joint Committee which would be directed by the Governing Body and would manage the implementation of the relationship.

Member States will be given authority through the Governing Body, which would consist of the heads of states and the presidents of the EU institutions and would meet at least biannually. Ad hoc meetings at ministerial level would also be held. The Joint Committee would consist of officials from the EU and the UK. In addition, the UK Parliament and the European Parliament would maintain a regular and formal dialogue.

The overall structure proposed in the White Paper is hybrid (see p. 21 of the report) because Member States of the EU as well as EU institutions would have authority in the governance of the relationship. This is different to other EU association agreements where Member States do not have a direct role in the supervision and implementation of the agreement. For example, under both the EU-Ukraine AA and the EU-Moldova AA the Association Council plays a role similar to that of the Governing Body. The Association Council consists, on the EU’s part, of members of the Council of the European Union and members of the European Commission. The structure of the EU’s AAs is commonly supranational because representatives from the EU institutions rather than member states are given the task of overseeing the implementation of the agreements.

Dispute resolution

The White Paper also proposes a framework for dispute resolution between the parties to the AA. The suggested mechanism would cover binding commitments between the parties, such as trade obligations. Protection of private rights is not covered and so British individuals or companies who consider their rights under the AA to have been infringed would only be able to enforce their rights in the UK through the UK courts and in the EU by the EU courts (para. 33 of the White Paper). This is typical of the EU’s AAs. For example, Article 402 of the EU-Moldova AA also excludes private rights from dispute resolution. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which replaced the Trans-Pacific Partnership (TPP) when the US withdrew from negotiations last year, also expressly excludes private action against the contracting parties (Article 28.22).

Private rights are also excluded from the dispute resolution mechanism under the Agreement on the European Economic Area (EEA Agreement) between the EU and members of the European Free Trade Area (EFTA) Norway, Liechtenstein and Iceland. To fill the gap, the European Commission, on the EU’s side, and the EFTA Surveillance, on the EFTA side, can receive complaints concerning the application of the EEA Agreement (Article 109(3) of the EEA Agreement) and may impose a fine on private persons if they breach the EEA Agreement (Article 110 of the EEA Agreement).

The EU’s recently concluded FTAs, such as the EU-Canada Comprehensive Economic and Trade Agreement (CETA), establishes a separate mechanism for investor claims and disputes arising in the financial services sector. Compensation awarded to investors is the primary remedy for such claims. The White Paper does not discuss this option. It is unclear whether the UK-EU FTA will contain an investment protection chapter.

Dispute resolution body

The White Paper says that disputes between the EU and the UK must be raised in the Joint Committee. Intermediation by an executive body is common to dispute resolution under the EU’s AAs. For example, under the EU-Moldova AA consultations are sought by sending a written request to the other party, copied to the Association Committee in Trade configuration (equivalent to a trade subcommittee of the Joint Committee). A similar arrangement for filing trade disputes is provided in the EU-Ukraine AA (Article 306).

If negotiations fail after a reasonable period of time, either of the parties may refer the dispute to an independent arbitration panel. Dispute resolution by independent arbitration panels is also typical in the EU’s AAs, including the EU-Moldova AA (Article 385) and the EU-Ukraine AA (Article 306). State-to-state dispute resolution under the EEA Agreement is different in this respect as it does not provide for the establishment of independent arbitration and instead gives the judicial function to an executive body (Article 111(2)).

The composition and process for appointment of an arbitration panel are not laid down in the White Paper, nor are the criteria for access to it, nor whether its findings will be published. All that is known so far is that the panel would include members from both parties. To this end, Article 28.9 of the CPTPP may serve as a template as it provides detailed rules on the composition of panels.

Remedies

The White Paper provides that in case of non-compliance, a complaining party may take measures to mitigate harm caused by the breach. These measures may include financial penalties or suspension of specific obligations (i.e. retaliation). As is common with trade regimes such as the WTO and CETA, such measures must be temporary and proportionate. Compensation and suspension of obligations for violations of trade obligations is typical to the EU’s AAs and are provided in both the EU-Moldova AA (Article 393) and the EU-Ukraine AA (Article 315).

In relation to suspension of obligations, WTO law allows a complaining party to cross-retaliate against any economic sector of the non-compliant state. In case of non-compliance by the EU, the so-called ‘carousel’ principle applies – goods and member states which are targeted by cross-retaliation rotate so that consequences are not concentrated in one member state and with respect to one product. The White Paper does not consider whether the same principle should apply to the UK-EU relationship. It only notes that suspension of obligations should be localised to the extent possible to the area of the future relationship that the dispute concerned (para. 46 of the White Paper). This is likely to be interpreted as meaning that in case of breach of trade obligations, suspension of obligations should be limited to trade.

In sum, the dispute resolution mechanism outlined in the White Paper is a mix of common features found in other EU association agreements as well as some innovative features. The proposal is up for negotiation with the EU, but it is Westminster rather than Brussels that will likely subject the proposal to most intense scrutiny and criticism.

The role of the CJEU

The influence of the Court of Justice of the European Union (CJEU) over the judicial system of the United Kingdom was, according to the Prime Minister, one of the key reasons which led to the Brexit vote. The Government has repeated time and time again that leaving the EU means leaving the jurisdiction of the EU Court. This has been a government red line. Yet, both in her Florence speech delivered on 22 September 2017 as well as in her Mansion House speech of 2 March, Theresa May suggested that judgments of the CJEU could be taken into account by the UK courts to ensure consistent interpretation of relevant EU law. This particular red line has already shown a pinkish hue.

So what exactly does it mean to leave the jurisdiction of a court but take its judgments into account?

Perhaps intentionally, the White Paper does not provide a straightforward answer to such a fundamental question. The document does suggest that the CJEU could have a dual role post-Brexit: (1) in relation to the UK courts when enforcing private rights stemming from the future relationship, and (2) in relation to the state-to-state dispute resolution mechanism. This is different to the EU’s recently negotiated FTAs, such as CETA where the CJEU has no role whatsoever. It is, however, typical in the EU’s AAs, perhaps because the aim of AAs is to lead to membership in the EU (this is not the case for economic cooperation under the FTAs). What the White Paper does demonstrate is that the sloughing of the CJEU skin is considerably more difficult than many Brexiters liked to think.

Let us address the dual role of the CJEU suggested in the White Paper.

The role of the CJEU in domestic cases

An obligation for the UK courts to follow the CJEU’s case-law differs depending on whether the dispute concerns the ‘common rulebook’ or other binding commitments under the future agreements. A ‘common rulebook’ is a customs arrangement proposed in the White Paper which effectively means that the UK would maintain the same rules for trade in goods as those of the EU in order to maintain frictionless trade and avoid Ireland/Northern Ireland border. It is not clear whether the UK intends to update its rules in line with changes in EU law.

The White Paper also suggests that when the UK courts enforce private rights stemming from commitments other than those related to the common rulebook, they ‘could’ take into account the relevant case law of the CJEU. This broadly confirms the language of s.6(2) of the recently adopted EU (Withdrawal) Act 2018 which provides ‘a court or tribunal may have regard to anything done on or after exit day by the European Court … so far as it is relevant to any matter before the court or tribunal.’

In addition, the White Paper opens a backdoor to the CJEU’s case law. In case of ‘significant’ divergence between the interpretation of the agreements by the EU and UK courts, the Joint Committee (the governing body for the future relationship) ‘could be empowered to act to preserve the consistent interpretation’ (para. 34 of the White paper). The practicalities of indirectly giving such unprecedented power over domestic courts to an executive body are not detailed.

An obligation for the UK courts to follow the CJEU’s case-law is stronger in relation to the common rulebook: the UK ‘would’ commit to its courts paying due regard to the CJEU’s case law. This effectively means that the CJEU’s interpretation of rules governing trade in goods would be binding on UK courts. Neither the EU-Moldova, nor the EU-Ukraine AAs set such obligation, perhaps because the EU does not have a common rulebook with them. Instead, they commit themselves to progressive legislative approximation, that is making their laws similar to those of the EU. In the process of legislative approximation, due regard must be given the case-law of the CJEU (e.g. Article 153 of the EU-Ukraine AA on the approximation of public procurement rules) but that is different from directly binding domestic courts to follow the CJEU’s case-law.

On the other hand, the implementation of rights and obligations stemming from the EU-Turkey Customs Union, in so far as they are identical to corresponding provisions of EU Treaties, must be interpreted in conformity to CJEU’s case-law (Article 66 of Decision No 1/95 of the EC-Turkey Association Council). Unlike association with Moldova and Ukraine which do not have a customs union with the EU, Turkey must ensure that its trade policies are compatible with those of the EU in order to maintain frictionless trade.

The UK courts would not, however, be able to make a preliminary ruling to the CJEU to ask for the CJEU’s interpretation on a certain aspect of EU law (para. 35 of the White Paper). However, the draft Withdrawal Agreement, which governs the UK’s exiting from the EU as well as matters related to the transitional relationship (i.e. post 29 March 2019 until 31 December 2020), does allow EU citizens to ask UK courts to make a reference to the Court of Justice. Article 151(1) of the Withdrawal Agreement states that when dealing with cases concerning citizens’ rights which were commenced within 8 years from the end of the transition period, the UK courts will be able to request the preliminary ruling (i.e. decision on interpretation) from the CJEU (without the presence of a British judge). The time-limits of the transition period are not (yet) known, but it may be extended for some years.

So, in answer to the question, has the UK been set free from the CJEU, the answer must be: not as much as many might like.

The role of the CJEU in dispute resolution between the parties

The White Paper also discusses resolution of disputes between the UK and the EU, as opposed to cases in the UK courts enforcing private rights.

Disagreements between the UK and the EU over the common rulebook for trade in goods would have to be resolved consistently with the CJEU’s case law. The Joint Committee (by mutual consent) or the arbitration panel would be able to make a preliminary reference to the CJEU. The CJEU’s interpretation of points of EU law would be binding on the Joint Committee and the arbitration panel (para. 42 of the White Paper).

This is not novel. Article 403 of the EU-Moldova AA provides that the CJEU’s rulings are binding on matters of EU law in disputes between the EU and Moldova (this would cover the common rulebook). Similarly, Article 322 of the EU-Ukraine AA provides that where a dispute raises a question of EU law, the arbitration panel must request the CJEU’s ruling which would be binding on the arbitration panel.

The approach adopted under the EEA Agreement is different. Reference to the CJEU is neither mandatory nor automatic – only if the dispute has not been settled within three months after it has been brought before the EEA Joint Committee, the parties ‘may’ agree to request the CJEU to give a ruling on interpretation of relevant points of EU law (Article 111(3) of the EEA Agreement).

In sum, the degree of influence of the EU Court over the UK’s judiciary will to a large extent depend on how much EU law will be let into the domestic system: the deeper the relationship, the bigger the role for the EU Court. A full stop to the jurisdiction of the CJEU would be a reality in case of a ‘no deal’ Brexit, and even in this situation the Withdrawal Act makes clear that the British courts may still take account of the case law of the Court of Justice because given the volume of EU law which is incorporated into UK law, the case law of the Court will have influence for decades to come.

Barnard & Peers: chapter 27

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The White Paper on the Great Repeal Bill: Invasion of the Parliamentary Control Snatchers

Professor Steve Peers

Yesterday’s White Paper for the forthcoming Great Repeal Bill outlines the key elements of the domestic law aspects of the process of the UK leaving the EU. It indicates broadly how the future proposal for a Bill will do two main things: (a) convert existing EU law applied in the UK to UK law including, in some cases, law of the devolved bodies in Scotland, Wales and Northern Ireland); and (b) provide for a process of amending ex-EU law in future.

While the White Paper has thought some issues through in detail, there are some key points on which it is either vague or unconvincing (or both). In particular, it contains no real detail or substantiated argument on the most important issue: the power of the executive to amend laws without an Act of Parliament.

Converting EU law

The White Paper confirms that the UK will continue to apply EU law until Brexit Day – which will be March 29, 2019, unless (a) the EU/UK withdrawal agreement specifies otherwise, or (b) the EU and UK agree to extend this date, or (c) the UK rescinds its notification to withdraw from the EU (if that is legally possible). It also confirms the intention to remove the European Communities Act – the main Act of Parliament that gives effect to EU membership in UK law – as of that date.

But it seeks to retain in force the EU rules which apply in the UK as of that date, subject to amendments (as discussed below).  The EU rules in question are directly-applicable Regulations and EU Treaty provisions, as well as Directives which were already transposed into UK law by using the European Communities Act. Also, the Treaties will remain relevant for the interpretation of ex-EU legislation which was initially based on them (para 2.10).

What about the EU courts? Here the White Paper draws a distinction. On the one hand, post-Brexit laws will not be subject to the jurisdiction of the EU Court, and the UK’s courts will not be obliged to take ECJ rulings into account (presumably they could choose to do so, however). On the other hand, ex-EU laws will still have to be interpreted by reference to pre-Brexit case law of the EU courts, to ensure certainty. There’s no reference to post-Brexit case law, but again presumably the UK courts could choose to consider it.

The latter rule will not be absolute, however: pre-Brexit ECJ case law will have the same binding effect as UK Supreme Court judgments, and so the Supreme Court could overrule those judgments in the same limited circumstances in which it can (and rarely does) overrule itself. It will of course be possible for Parliament to overturn ECJ case law by amending the legislation, and the government hints that it might want to consider clarifying the circumstances in which the Supreme Court could overturn prior ECJ rulings.

A similar distinction arises as regards the supremacy of EU law: the EU court rule that EU law takes precedence over any conflicting national law, so the latter has to be disapplied by national courts in the event of any conflict. The supremacy rule will not apply to post-Brexit UK legislation, but it will still apply to pre-Brexit UK laws that conflict with ex-EU law.

Despite the general conversion of EU law, the White Paper insists on an exception for the EU Charter of Rights.  In that case, the ex-EU legislation will be interpreted after Brexit by the ‘rights underlying’ the Charter (ie the ECHR and other international treaties which the UK has signed), rather than the Charter itself.

Amending ex-EU law

Obviously the body of ‘ex-EU’ law will not remain unchanged forever. The White Paper discusses the process by which it can be changed in future. There are two key issues here. First, will any changes be the responsibility of the Westminster Parliament or government, or the parliaments and executives of the devolved bodies in Scotland, Wales and Northern Ireland? Secondly, within Westminster, what changes will be subject to Acts of Parliament, and what will be subject to delegated powers conferred upon the executive?

On the first point, the White Paper is vague about exactly what powers will be exercised by the devolved administrations, and this is likely to be a highly contested issue in practice.

On the second point, the distinction between Acts of Parliament and executive powers is important because an Act of Parliament allows for extensive public discussion and parliamentary scrutiny, whereas an act of the executive (usually in the form of 'Statutory Instruments') is subject to limited public or parliamentary involvement. For instance, there is far less time for discussion, and no prospect of tabling amendments.

The White Paper starts by mentioning some possible delegated powers for the Great Repeal Bill that will surely be uncontroversial. For instance, it refers to the references in ex-EU law to 'EU law', powers of the EU institutions, or information sharing with the EU. Since most of these references will be redundant (except possibly as regards continued sharing of police information, as the White Paper notes), there are limited policy choices to be made when replacing them. So there can be little objection in principle to the executive using such powers.

However, there is a further category of changes to EU law which will be more substantive. The White Paper gives a non-exhaustive list of cases where the government thinks it should have delegated powers: where a policy might change in light of the Brexit talks with the EU; where a policy changes as a direct consequence of leaving the EU; and where the level of detail is 'not appropriate' for an Act of Parliament. 

More generally, the government argues that these powers must be widely defined and must apply not only to ex-EU law converted into EU law, but also Acts of Parliament linked to EU membership. The power for the executive to amend Acts of Parliament is controversial, and such clauses are widely known as 'Henry VIII clauses'. Although the House of Lords Constitution Committee had previously argued that there should be extra powers of parliamentary scrutiny in this context, the government implicitly rejects this view. 

Comments

The overall objective of ensuring legal continuity by retaining pre-Brexit EU law in force is logical, and the White Paper has thought many of the details through. It makes sense to ensure that legal continuity as much as possible by creating a distinct body of ex-EU law, where a form of the principle of supremacy still applies and ECJ judgments remain binding, subject to the rare case that the UK Supreme Court might want to overturn.

However, some of the detail has not been considered: what about future ECJ case law? What about cases concerning EU law in the UK pending in the UK courts or the EU courts on Brexit Day? What if a condition of ensuring market access to the EU after Brexit is to take relevant EU court case law ‘into account’? (Note that this falls short of making those judgments binding, and is even an even longer way from retaining the supremacy of EU law over national law). What about the domestic legal impact of any alternative court or dispute settlement system that might rule on UK/EU disputes after Brexit?

The hostility to the EU Charter forms an exception to the rule that prior EU law continues to apply, and raises much legal uncertainty. Does it also mean that ECJ rulings referring to the Charter should be ignored, at least to the extent that they refer to the Charter? Since many such rulings refer to other EU laws and interpret them in light of the Charter, there will in effect be an odd requirement to keep following part of a ruling but not all of it. But this will be like trying to remove an egg from an omelette, because the judicial reasoning on the Charter and the EU legislation is intertwined.  

To some extent, this effect will be limited by the requirement to interpret the ex-EU law in light of the ‘underlying rights’ instead of the Charter. But what does this mean in light of the government’s intention to repeal the Human Rights Act, and replace it with a British Bill of Rights? What if the ECJ’s interpretation of the Charter was arguably more ambitious in a particular case than the relevant ‘underlying rights’ in the Charter? What if the relevant ‘underlying rights’ are set out in a human rights treaty which the UK has not ratified, or not made part of its domestic law? And there is no mention of the pre-Charter case law of the ECJ on human rights as ‘general principles of law’; what happens then?

Moving on to the amendment process, the White Paper’s initial examples of very technical changes to ex-EU laws that the government might wish to make are frankly misleading. For the White Paper then goes on to refer to a non-exhaustive list of broad discretionary powers which the government wants to make changes to the statute book in light of talks with the EU, to make consequential changes to policies or to fill in details of laws.

As drafted, these powers are potentially nearly limitless. They could, for instance, be used to adopt every detail of future policies on agriculture, fisheries, trade with non-EU countries or extradition to the EU without full parliamentary scrutiny or public discussion, because each of these are areas where the new laws could be regarded as changes consequential to leaving the EU. 

So how should Parliament limit government powers? It will be hard to avoid conferring some substantive delegated powers on the government, as the time frame to implement a Brexit agreement with the EU (or the absence of one) before the likely Brexit Day of March 29, 2019 might be tight. On the other hand, there might be several months to spare, or there might be a transitional agreement keeping EU law in force for some time, so giving Parliament more time to act.

The best way forward is to rule certain issues off-limits entirely, particularly issues where EU law provides for essentially domestic legal harmonisation: for instance employment law, environmental law, consumer law, discrimination law. In those areas there is generally no reason why the law necessarily has to change if the UK leaves the EU, because the relevant laws are not usually about cross-border matters. (There are exceptions, like European Works Councils or carbon trading laws).

In other substantive areas, where there is a direct link with leaving the EU, Parliament should be given a right to rule on whether the conditions for conferring delegated powers on the government are met. Effectively it could decide whether the trigger for those powers had to be pulled due to lack of time or not. (Thanks to Professor Tammy Hervey for a version of this idea). There could be particular limits on the power of the executive to amend Acts of Parliament.

Also, the government could be pressed to make more effort to table Acts of Parliament well in advance of Brexit Day on the planned changes to some key areas, for instance agriculture and fisheries, to enable full parliamentary scrutiny. In particular, the planned customs bill could include rules setting out the domestic legal framework for UK’s post-Brexit international trade law (more on that specific issue another time).  

Finally, on the issue of devolved assemblies, it is striking that the Brexit Minister’s foreword to the White Paper talks generally about a “significant increase in the decision-making power” of the devolved bodies, but the actual White Paper then does not give any detail of this. On the other hand it does go into some detail about the powers which can’t be conferred upon devolved assemblies, due to an intention to ensure a UK-wide single market.

Maybe we need a short, simple phrase to refer to the promise of devolved powers which is not then substantiated by any detail. Might I suggest…“the Vow”.

Barnard & Peers: chapter 27

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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 naïve. 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