News and Publications

'Dem dry bones' – little detail added to Government’s approach to Brexit

Posted: 06/02/2017

The Government’s White Paper on its approach to exiting the EU has been published.  It is 77 pages long but does not really add much by way of detail to the Prime Minister’s speech of 17 January 2017 (on which we reported here).

In substance the paper is split into sections which each relate to the 12 objectives laid out by the Prime Minister in her earlier speech.  These are:

  • providing clarity and certainty;
  • taking control of our own laws;
  • strengthening the Union;
  • protecting our strong and historic ties with Ireland and maintaining the Common Travel Area;
  • controlling immigration;
  • securing rights for EU nationals in the UK and UK nationals in the EU;
  • protecting workers’ rights;
  • ensuring free trade with European markets;
  • securing new trade deals with other countries;
  • ensuring the UK remains the best place for science and innovation;
  • cooperating in the fight against crime and terrorism;
  • delivering a smooth orderly exit from the EU.

In terms of proposed future legislation, we are told that there will be a Great Repeal Bill to remove the European Communities Act 1972 from the statute book but convert the ‘acquis’ (that is the body of existing EU law) into domestic law. The stated intention is that the UK Government and devolved assemblies will subsequently be able to decide which parts to keep or amend.

Post Brexit we are told that there will also be future primary legislation for other areas – immigration and customs being specifically mentioned. In addition, the final UK-EU deal will be put to Parliament for approval (although as has been mentioned before, there will hardly be any scope for renegotiation by that stage).

Much of the paper reads as if the Government is giving assurances that it is aware of issues that will need to be addressed and also saying that it is confident that they can be dealt with:  

  • on immigration, for example, the Government repeats its intention that it will ‘design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law’.  But then the paper goes on to recognise ‘great benefits’ from immigration, ‘skills shortages’ to be addressed, the need to ‘welcome genuine students and those with the skills and expertise to make our nation better still’.  Implementation of any new arrangements will, apparently be ‘complex’ (paragraph 5.10).  There is not much of an indication of what the Government would like those arrangements to look like, however;
  • on Ireland the level of integration between the two countries is affirmed, as is the Government’s intention to ‘protect the ability to move freely between the UK and Ireland, north-south and east-west’.  The Government also has an ‘explicit objective’ of ensuring that ‘full account is taken for the particular circumstances of Northern Ireland’.  A ‘practical solution’ will be sought, and it will need to be as this aspiration will jar significantly with the aims to end freedom of movement;
  • in relation to science and innovation, the value of the sector to the UK is highlighted and some reassurances given about post-Brexit funding.  However, while EU projects such as Horizon 2020 and the European Space Agency are namechecked, there is no statement of intent beyond a comment that as the UK exits the EU ‘we would welcome agreement to continue to collaborate with our European partners on major science, research and technology initiatives’.

On balance, though, despite there being significant parts of the document stating that there are points that need to be agreed (the paper is very fond of seeking ‘solutions’ and resolving ‘issues’), for many of those the approach can be condensed into ‘we will do something; we know not what’. 

For many, the key element is at section 8 relating to ongoing trade arrangements with the EU post-Brexit.  Here, again, the fact that the UK will not be a member of the Single Market is reaffirmed. Instead the Government will ‘pursue … a new strategic partnership with the EU including an ambitious and comprehensive free trade agreement and a new customs agreement’.  This is highly ambitious.  The Government’s reasoning behind believing that it can be achieved within the two year timeframe seems to rest on: 

  • the fact that the UK and EU currently share a functioning arrangement so this is not a standing start. The paper states that ‘this position is unprecedented in previous trade negotiations. Unlike other trade negotiations, this is not about bringing two divergent systems together. It is about finding the best way for the benefit of the common systems and frameworks, that currently enable UK and EU businesses to trade with and operate in each other’s markets, to continue when we leave the EU.….’
  • the close existing trade agreement that already exists, the UK being the EU’s biggest export market and vice versa save that, ah-ha, ‘the EU currently exports more to the UK than vice versa’ (a pre-referendum argument put front and centre).

So there we have it – there will be a full free trade agreement with the EU.  The section then goes through various economic sectors (aerospace, agriculture food and fisheries, service, financial services, energy, transport and communications and others), not really making many statements of intent.  It reads as if the Government simply wants people to know that it is aware of issues.  The paper also names certain EU agencies (which the Prime Minister’s speech did not do), but again simply says that it will have regard to them (although the UK will be leaving Euratom).

There is an interesting aside.  The rationale for leaving the Single Market in the Prime Minister’s speech was that the jurisdiction of the European Court of Justice was to end. However, under section 2 of the paper, it is explicitly recognised that there will need to be a dispute resolution mechanism: ‘we will seek to agree a new approach to interpretation and dispute resolution with the EU’.  The paper then lists types of resolution forum (such as that used by CETA, NAFTA and others) and, in fact, has a whole annex dedicated to it.  On that basis for trade at least, one court will need to be replaced with another carrying out a similar function.

If the Government’s 12 objectives are the skeleton upon which it hopes that the future relationship with the EU will rest, the White Paper does not put too much flesh on the bones.  Perhaps the key concern will be the extent to which the Government’s aims are achievable or indeed realistic within the two year timeframe allowed under the Treaty framework.


Arrow GIFReturn to news headlines

Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP