Professor Steve Peers

The UK government recently published its Brexit White Paper after much delay. The result is underwhelming and lacks substance, akin to a disappointing effort.

The White Paper is essentially a rehash of Theresa May’s previous speech with some added statistics and graphs, much of which is either outdated, inaccurate, or incomplete. It lacks a thorough examination of post-Brexit possibilities and their respective advantages and disadvantages, likely because the paper provides little concrete information about these options. The rushed nature of the document is apparent.

Detailed comments on the White Paper

The paper begins with fragmented quotes from the Prime Minister, including the questionable assertion that 65 million people support Brexit, disregarding the 48% who voted against it. Unfortunately, it doesn’t improve much from there.

However, there is some detail regarding the ‘Great Repeal Bill’, which aims to integrate existing EU law into UK law. A separate White Paper will be published on this Bill, which will retain EU Regulations in UK law in addition to EU Directives.

This is noteworthy because Directives, by their very nature as defined by EU law, have already been incorporated into UK law. Regulations, on the other hand, have not and would vanish unless measures were taken to preserve them. Regulations are more prevalent in areas where EU law is more harmonized, whereas Directives often apply where there is less harmonization.

The White Paper states that post-Brexit, former EU law should be interpreted “in the same way as it is at the moment,” suggesting that the case law of the EU courts, despite being disliked by many Brexit supporters, will remain significant. How this interpretation approach will be implemented outside of the EU remains unclear, but the most likely method is to incorporate language to this effect in the Great Repeal Act. However, the paper uses the vague term “Generally” without explanation and fails to address two crucial questions: what about EU case law established after Brexit, and what about EU legislation amended after Brexit?

Following Brexit, the UK will be responsible for amending former EU law. However, the White Paper provides limited information about who will have the authority to do so. Any “significant policy change” will require an Act of Parliament, providing the House of Commons and the House of Lords ample opportunity to debate, amend, or block the government’s plans. Bills on customs and immigration are specifically mentioned.

However, there is also a commitment to a “programme of secondary legislation”. This refers to various methods by which the government can create laws with limited parliamentary scrutiny – typically, only one opportunity to review the draft law without the option to amend it. While the White Paper refers to this as “oversight,” it is not particularly robust. By deduction, this is how the government intends to modify areas of former EU law other than customs and immigration, such as environmental and employment law. The White Paper expresses a desire to eliminate “deficiencies” in former EU laws, but one person’s “deficiencies” may be another person’s clean beaches.

The section on “taking control” of UK laws begins with the striking 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 recently affirmed that Parliamentary sovereignty persisted during the UK’s EU membership because Parliament could have prevented the domestic application of any EU law by expressly choosing to keep conflicting Acts of Parliament in effect.

Setting aside the legal intricacies, this is a surprising statement. The ‘Leave’ campaign’s most popular slogan was ‘take back control,’ but this statement acknowledges that control already existed. The issue, it seems, is the perception of a lack of control.

So, what caused this perception? Could it be the persistent falsehood that EU law is enacted by ‘unelected bureaucrats’? (In reality, EU laws are adopted jointly by national ministers and the elected European Parliament, and the UK votes in favor of proposed laws over 90% of the time). The White Paper, unsurprisingly, makes no mention of this. Instead, it exaggerates the influence of EU law in the UK by including ‘soft law’ (non-binding measures such as Recommendations, Communications, Reports, and Opinions) in the total number of EU documents sent to Parliament.

The White Paper correctly points out that there is no need for the EU courts to have jurisdiction over agreements between the UK and the EU. In fact, the EU rarely requests this from other countries (although the EU courts do rule on how such treaties should be interpreted by the EU). This emphasis on the EU courts has always felt like a distraction, allowing the UK government to claim ‘victory’ by opposing something the EU may not even request.

Moving on to devolution, the White Paper outlines various ways of communicating with the devolved administrations, but ignores the fact that the government has already ruled out all of the options presented by the Scottish government in December.

There is a dedicated section on Northern Ireland that lists facts but provides no insight into how the reinstatement of border controls between the Republic of Ireland and Northern Ireland can be avoided. Brexit supporters appear to believe in a ‘Brexit Fairy’ who will magically resolve any issues caused by Brexit. The Irish border issue appears to be a task for her culturally appropriating cousin, the Brexit Leprechaun.

This section mentions the widespread belief that the Ireland Act 1949 guarantees the status of Irish citizens in the UK. This is debatable in terms of immigration status, as Professor Bernard Ryan explains in detail.

The White Paper then addresses immigration, citing “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 is a conspicuous lack of data to support these assertions, possibly because they are dubious. However, why bother with evidence when we can simply parrot Nigel Farage? And why is there no mention of the supposed £350 million/week that would be available for the NHS if public services are truly suffering as a result of EU migration?

It is worth noting that this section mentions the possibility of ‘phased implementation’ of new immigration rules for EU citizens. This appears to be a euphemism for an interim agreement with the EU – which would presumably entail maintaining a limited version of free movement of people for a set period of time. This issue is likely to be a major sticking point in negotiations.

The following section focuses on current UK/EU migrants. The government reiterates its commitment to securing their status, but provides no specifics on what “securing status” entails. For millions concerned about their future, the banality of political rhetoric couldn’t be bothered to offer anything more concrete.

The White Paper reiterates the government’s promise to maintain EU employment protection in the section on employment rights. However, as previously stated, there is no mention of safeguarding those rights by requiring an Act of Parliament to change them. There are weasel words here, such as “strengthening rights when it is the right choice for UK workers” and “maintain the protections and standards that benefit workers” (emphases added). There is a distinct “fox in charge of the henhouse” vibe here – literally, given cabinet minister Liam Fox’s stance on EU employment regulations.

This section includes the typical claims that UK employment law is superior to its EU counterpart. While this is true in some respects, and some issues are unrelated to EU law (for example, the minimum wage, which the White Paper rambles on about), there are numerous areas where EU case law has strengthened workers’ rights in the UK. For example, holiday pay for UK workers on fixed-term contracts, commissions, or with additional allowances.

The section on trade and economic cooperation reiterates the desire to sign a free trade agreement without addressing the relative merits of remaining in the single market. There are vague and unsubstantiated statements about future EU/UK cooperation. The government wants “civil judicial cooperation” with the EU to continue. But in which areas? (There are general EU rules on civil and commercial judgments, as well as specific rules on insolvency, recognition of divorce and child access rulings, and maintenance payments).

Similarly, while the White Paper lists numerous EU economic laws, it fails to specify which ones the government would like to remain a part of: competition law, the EU trademark, the unitary patent, or EU data protection law?

The discussion of Euratom, the atomic energy treaty linked to the EU, implies that the UK energy industry would benefit from a post-Brexit cooperation agreement with Euratom. However, due to its general paranoia about revealing its intentions, the government is unwilling to say so. Yet, even Homer Simpson - the world’s most famous, but also dumbest, nuclear industry employee - could figure out the UK’s negotiating strategy in this area.

Similarly, the White Paper provides interesting statistics on the utility of EU criminal and policing laws and reaffirms the government’s desire to play a role in EU foreign and defense policy. However, there is no information on what the UK would like to participate in.

The White Paper is largely devoid of substance because the UK government is concerned about negotiating secrecy. While some aspects of the government’s position must remain confidential, it is important to note that treaties are not negotiated with actual playing cards. They are negotiated by submitting draft texts – so the EU will inevitably see what the UK is requesting once talks begin.

The government may be concerned about a different issue: being embarrassed in front of the British public by requesting things it does not receive. However, this is a little naive. In my experience, EU and Member State officials enjoy talking. Furthermore, a steady stream of EU documents is leaked to the Statewatch website. Even if UK officials remain tight-lipped, the EU side will be vocal.

Finally, the “we can’t show our cards” argument reminds me of a relevant anecdote. Years ago, during the Soviet Union’s dying days, I traveled to Moscow as a member of the university debating team. Our stomachs were grumbling after several days there due to the impact of central economic planning on the availability of edible food. So, a few of us sought refuge for the evening at the Canadian embassy, where there was decent food and beer (we’d had our fill of vodka at that point).

We started playing cards after a frantic dinner. We’d never played cards together before, so we didn’t know what to expect. One of my friends kept asking the most basic questions about the rules of the game. At one point, he even showed one of his cards to everyone and asked, “So, what should I do with this? Is this a good card?” Everyone laughed, and no one took him seriously as an opponent. He had the best hand by far at the end of the game, and he won easily. It turned out he knew the rules perfectly well, and his pretense of complete ignorance had been a brilliant bluff.

Everyone in Britain can only hope that this is the government’s true Brexit strategy. The terrifying alternative is that the government is as inept as it appears.

Barnard & Peers: chapter 27

Photo credit: Wings Over Scotland