Richard North, 03/02/2017  
 


The While Paper has been published. Overall, it is evident that there is little new, and not a great deal more detail than there was in the May speech. Although the document runs to 77 pages, there are many half-page gaps and unused pages, making it roughly equivalent to a 50-page document.

What immediately strikes one about the paper, though, is not what it says but what it leaves out. As a result, it puts an almost romantic gloss on the process of leaving the EU, without once acknowledging the reality of our status once we have left. As such, the White Paper is not informative. It represents an act of delusion - more self delusion, methinks, than an attempt to deceive its readers. The authors delude themselves, first and foremost.

We see this most clearly right up front, on Part 1, where the Government undertakes to provide us with "certainty and clarity" – something which falls apart the moment it elaborates on "its general approach" to preserving EU law.

The intention is to ensure that all EU laws which are directly applicable in the UK (such as EU regulations) and all laws which have been made in the UK, in order to implement our obligations as a member of the EU, remain part of domestic law on the day we leave the EU. This means, we are told, that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before.

Therefore, the Bill (they mean, of course, the Act – once it has been given Royal Assent) will preserve EU law where it stands at the moment before we leave the EU. Parliament (and, where appropriate, the devolved legislatures) will then be able to decide which elements of that law to keep, amend or repeal once we have left the EU.

But then, tucked in is codicil. The Bill (the Act) "will enable changes to be made by secondary legislation to the laws that would otherwise not function sensibly once we have left the EU, so that our legal system continues to function correctly outside the EU".

Changes will indeed need to be made, and some will have to be fairly substantial. This we see in the fishing policy where the EU regulations, if simply copied out, would not be able to function sensibly. Permitting them to be changed by statutory instrument, though, hands a huge amount of power to the executive. On that basis, Brexit in the first instance will not greatly enhance Parliamentary sovereignty. The transfer of power will be from the EU institutions to Whitehall.

But what the White Paper doesn't say is that those "rules and laws" – as adopted and then changed in order to make them function sensibly - will apply in their altered forms only to the territories administered by the United Kingdom. As we see with chemicals, with medicines, meat and meat products, racehorses and much else, we cannot legislate to make the EU accept our exports, or recognise our licenses, approvals, registrations and certificates.

The essential point that the White Paper fails to make, therefore, is that on day-one of Brexit, we assume the status of "third country" – and everything changes. The same rules and laws may apply on the day after we leave the EU as they did before, but not in the same way. And as to how they will actually work, there is absolutely no certainty or clarity.

Moving on, one cannot help but look askance at the claim that: "We will continue to build a national consensus around our negotiating position …". The Government can, by all means, seek to build a consensus but not even its best friends could assert that it is actually building one. If anything, the nation – an opinion – is more divided than it was on 23 June.

The Government asserts it is listening and talking to as many organisations, companies and institutions as possible (but not individuals). It also claims that Government ministers have led widespread engagement with their sectors and ministers from the Department for Exiting the EU alone have held around 150 stakeholder engagement events, covering all sectors of the economy.

What the Government hasn't done, though, is launch a formal consultation exercise – one that is properly organised, with the responses published before any action is taken. This is all "hole-in-the-corner" stuff, with Ministers talking to their pals and paid lobbyists.

As we then arrive at Part 2, we see the Government proclaiming that the sovereignty of Parliament is a fundamental principle of the UK constitution. Of course, it should not be saying this. The people are sovereign, having decided the issue on EU membership, when craven MPs ducked the decision and favoured staying in.

But then we get the lie – unwitting, maybe, but a lie nonetheless. "Leaving the EU will mean that our laws will be made in London, Edinburgh, Cardiff and Belfast, and will be based on the specific interests and values of the UK" says the White Paper.

Here, I think we can usefully quote Dominic Grieve and his comments on the mythologising of the doctrine of parliamentary sovereignty and "being in control". He notes that all sovereignty is constrained domestically by the Rule of Law, by conventions based on moral principles and internationally by the reality that our economic, physical and ethical wellbeing is rooted in international engagement which requires the creation and observance of international law.

So much of our trading and even our domestic law is defined or mediated by international norms that it is almost impossible to tell where one ends and the other begins. This idea that our laws will be "made in London, Edinburgh, Cardiff and Belfast" is a sheer childish fantasy.

Delving further into this second part, there is a dissertation on dispute resolution mechanisms which is new to the discourse, but of somewhat disproportionate length and detail given the shallowness the White Paper as a whole.

There is something here of a "she doth protest too much" smell, as different types of dispute resolution mechanism are explored, all to explain that there are alternatives to reliance on the ECJ. This, presumably, is to pre-empt suggestion that, in any free trade agreement that might be concluded between the UK and the EU might in fact be the ECJ.

A full part is then devoted to relationships with the devolved administrations, with Part 4 then addressing the Common Travel Area (CTA) with Ireland, stating that: "We want to protect the ability to move freely between the UK and Ireland, north-south and east-west … while protecting the integrity of the UK’s immigration system".

Rather than detail, though, we get a "commitment" to "work with the Irish Government and the Northern Ireland Executive to find a practical solution that recognises the unique economic, social and political context of the land border between Northern Ireland and Ireland". The very wording of this strongly suggests that the UK Government has yet to identify a solution that could well turn out to be an intractable problem.

Part 5 then has the Government's ideas on controlling immigration. The "colleagues" will doubtless be pleased to know that "We will remain an open and tolerant country, and one that recognises the valuable contribution migrants make to our society and welcomes those with the skills and expertise to make our nation better still".

Then comes the money quote, with the declaration that, "in future we must ensure we can control the number of people coming to the UK from the EU". Thus, "We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU". The Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.

If the Government suggested that it was aiming to capture the moon and bring it down to the Irish Sea, where it will be mined for green cheese, this might be just as convincing. Controlling the number of people coming to the UK from the EU might prove just as difficult, unless we are going to start insisting on visas and turning visitors away at the border.

Nevertheless, that seems as if it is a possibility, where the White Paper declares that: "It is simply not possible to control immigration overall when there is unlimited free movement of people to the UK from the EU".

What is intriguing then is that the White Paper goes on to say that "implementing any new immigration arrangements for EU nationals and the support they receive will be complex". Well, you don't say – it will be "complex".

But we also learn that "Parliament will have an important role in considering these matters further", which suggests that plans are a long way from being finalised, to which effect, we find out that there, "may be a phased process of implementation to prepare for the new arrangements". This is worryingly vague.

I will pass over Part 6, which deals with: "Securing rights for EU nationals in the UK, and UK nationals in the EU", although I may come back to it at a later date. Equally, Part 7 on workers' rights can be given a miss. This is a non-issue, which then brings us to the meat of Part 8 on: "Ensuring free trade with European markets".

This seems as good a point as any to take a break, whence I will analysis and commentary tomorrow, picking up where I left off.






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