The White Paper of her Majesty’s government on the future relationship with the European Union

The White Paper of her Majesty’s government on the future relationship with the European Union from July 12, 2018

A first assessment

The first soundbites were great. Finally the British cabinet found a common position on how to deal with Brexit. The White Paper on the future relationship with the European Union should bring negotiations between Britain and the European Union to a new stage.

In her foreword the Prime Minister speaks of the 2016 referendum as the „largest ever democratic exercise in the United Kingdom – the British people voted to leave the European Union“. This is belittling the long and shining history of democracy and Great Britain. Each general election is a greater democratic exercise than a referendum based on demagoguery and outright lies. And the British people were deeply divided on that vote, so it would be worth mentioning that the result of the referendum is based on a tiny majority.

Referenda are „democracy without safeguards“ – and therefore much less democratic than parlamentary procedures scrutinizing each law in three readings in two chambers.

Theresa May then describes the negotiation process: „some of the first proposals each side advanced were not acceptable to the other. That is inevitable in a negotiation. So we have evolved our proposals, while sticking to our principles. The proposals set out in this White Paper finds a way through which respects both our principles and the EU’s.“

This is quite an euphemistic description of a painstaking negotiation process that was mainly taking place within the British Government and the Tory Party. The Prime Minister stuck to some untenable red lines for two years loosing valuable time against the ticking clock of the Brexit date.

She believes that her proposal now strikes the balance between rights and obligations and delivers a principled and practical Brexit that is in the UK’s and the EU’s mutual interest. That has to be proven.

The EU has welcomed that the British government finally sets out a comprehensive proposal. If it really strikes the balance between rights and obligations and if it is really in the mutual interest of both sides the EU will certainly study the proposal thoroughly and react positively. However, I suspect the White Paper does not – at least not yet – strike a fair balance.

In the foreword by the Prime Minister Theresa May repeats the list of red lines brought forward by her over the last two years starting with her Lancaster House speech, repeated in her speeches in Mansion House, Florence and at the Munich Security Conference:

– end the jurisdiction of the European Court of Justice in the UK
– end free movement, taking back control of the UK’s borders
– having an independent trade policy striking trade deals with other countries
– end vast annual contributions to the EU budget, releasing funds for the NHS
– leave the common agricultural policy and common fisheries policy
– leave the Single Market and leave the Customs Union of the EU

As set out by Theresa May in all former speeches she wanted a bespoke, far-reaching free-trade agreement of a new kind. The new British proposal could be called an Association Agreement if the EU wants so, the White Paper suggests.

There are four elements which deserve a closer look:

1 – the proposal would preserve the U.K.’s and the EU’s frictionless access to each other’s markets for goods while new arrangements for services would be proposed. A common rulebook for goods including agri-food shall provide for frictionless trade at the border. A Facilitated Customs Arrangement (FCA) shall do the magic to make that possible without having a customs union.

The proposal is not new. The EU has always been rather sceptical about such hybrid constructions short of a customs union. However, for the first time now the British Government lines out in detail what it means by that.

Some common rules would be part of any Free Trade Agreement. The EU cannot offer market access on conditions that are better than for EEA countries without observing the four freedoms, including free movement. The White Paper takes that into account proposing a Free Trade Zone with the FCA to avoid border controls that would be disruptive for British manufacturers who fear that production chains could be broken up.

The common rulebook shall only cover the goods where this is „necessary“.Who is picking those rules which are „necessary“ for frictionless trade? Why should the EU give the British Parliament a choice which set of rules is good for mutual trade?

2 – the shared commitments to Northern Ireland and Ireland will be met „through the overall future relationship, in a way that respects the EU’s autonomy without harming the UK’s constitutional and economic integrity

The negotiations were stuck on the problem how to avoid a hard border between Northern Ireland and the Republic of Ireland while the UK insisted that there must not be any customs border in the Irish Sea between the constituent parts of the UK. The White Paper opts for a solution where the whole of Britain avoids a hard border, avoiding a special status for Northern Ireland.

3 – the shared security capabilities that keep citizens in the UK and the EU safe shall be maintained, as Britain works in partnership with member states to tackle crime and terrorism

The British Government became aware that the Home and Justice Chapter of the EU-Treaty is very relevant for European security including the United Kingdom. Therefore the White Paper „offers“ a security partnership, in fact meaning that Britain wants to keep the benefits of the security elements of the „ever closer union“.

Insisting on ending Free Movement for EU citizens the proposals for Mobility are rather strict – it could happen that identity cards used for cross-border-travel all over Europe may no longer serve to travel to Britain (which has no identity cards), because only passports will be accepted. To „offer“ visa-free-travel is cynical. By national legislation this can easily be avoided. Tourist Visa inside Europe including the UK were abolished long time before the UK joined the EU. Even mentioning that as a topic for negotiations shows how reactionary the whole Brexit is.

4 – cooperation should continue in areas including science and International development

During the referendum campaign both sides did not really demonstrate to the electorate what the benefits of the EU really are. Most British politicians did not have a clear idea about these benefits. Now the UK found out. In fact it does not just want to co-operate. The White Paper suggest that the UK should stay in programs that give benefits to EU citizens and want to continue access to valuable databases created to support common EU efforts.

Theresa May sticks to her red lines and then describes the cherries she wants to pick. This is just the cherry-picking approach Britain pursued from the start of the negotiations, an approach the EU side has never accepted. Let us look to the text of the White Paper to see if there are more opportunities for a solution and where in the details the devil is hiding.

The United Kingdom wants to leave the EU, wants to be outside of the Single Market and the Customs Union. So far – so good. If Brexit means Brexit then it is like leaving a London Club. So we leave the club. But not really. Why not continue to use the pool, the golf club, the restaurants, the rooms and the library of the club any more. The club must not punish us with excluding us from all the benefits we enjoyed for such a long time. We even forgot that this has anything to do with club membership.

All over the White Paper a long list of EU agencies, programs and institutions come up where Britain wants to stay inside, participate or co-operate. Everybody would find it quite strange if the former member wants to continue to benefit from most facilities of the club based on a special bespoke regime.

Here is the list of the cherries to pick:
– The European Chemicals Agency with the ECHA database
– The European Aviation Safety Agency with the EASA database
– The European Medicines Agency with the EMA database
– The Rapid Alert System for Food and Feed (RASFF)
– The Rapid Alert System for Serious Risk (Rapex)
– The Information&Communication System for Market Surveillance (ICSMS).

Britain wants co-operation with access to EU data systems and programs like:
– The Galileo global navigation system
– Europol (the EU Police cooperation) to combat organised immigration crime;
– Frontex to strengthen the EU’s external border
– Eurojust (the inside-EU Justice cooperation)
– EU’s Computer Emergency Response Team (CERT-EU) for Cyber Security
– access to Eurodac , the migrant registration system
– European Centre for Disease Prevention and Control (ECDC), where the UK
wants access to all associated alert systems, databases and networks
– the Unified Patent Court and unitary patent system
– the European Maritime Safety Agency (EMSA)

On the Internal Energy Market (IEM the UK offers two options: leave or participate in the IEM.

The British Government wants UK and EU nationals to continue to be able to use the European Health Insurance Card (EHIC)

The UK wants special agreements (cooperative accords) on keeping the
– flow of personal data flowing (but no longer controlled by ECJ jurisdiction)
– cooperation on science and innovation
– cooperation on culture and education providing
– UK participation in EU programmes
– Erasmus (the inside-EU student exchange program)
– UK institutions to be partners, associates, or advisers to EU projects
– UK membership of EU cultural groups and networks
– UK continued involvement in Creative Europe
– cooperation on development and international action
– cooperation on defence research and development
– agreement with the EU on civil judicial cooperation
– a new civil nuclear relationship
– continued participation in ECRIS

On transport the UK wants to maintain
– aviation access between and within the territory of the UK and the EU
– bilateral rail agreements with relevant Member States
– on the road: access for UK road hauliers and passenger transport operators

On health the UK is interested in continued cooperation with
– the Health Security Committee
– the European Centre for Disease Prevention and Control (ECDC),
with access to all associated alert systems, databases and networks
– the European Monitoring Centre for Drugs and Drug
Addiction (EMCDDA)
– the European laboratory surveillance networks
– the European Public Health Microbiology (EUPHEM), where the
Microbiology Reference Laboratories in Glasgow, and Public Health
Wales, should continue to provide training for the EU program

The UK wants information and intelligence sharing, for example through INTCEN SATCEN and EU Military Staff (EUMS). It would have been a good idea to offer EU partners an equal status with the five eyes (Britain had special exchanges with the US, Canada, Australia and New Zealand on intelligence not shared with EU or NATO partners!) – This would at least offer something really new.

Yes: I am aware that some of the wishes of the UK are an offer to the EU to continue cooperation in all sectors including on security which is in our mutual interest. But this only shows that Brexit is not in our mutual interest.

But what is remarkable is that these issues are made part of the bargaining package – and therefore I insist: it is also, and sometimes mainly Britain that has an interest in not disrupting existing good cooperation by stupid Brexit.

In most cases the White Paper gives good reasons to stay inside the European agencies and continue the fructiferous cooperation. All this accumulates to good reasons to stay in the EU, where all these extremely useful agencies are part of the all-inclusive package of a very useful „ever closer union“.

After reading the whole text I became aware how problematic the British approach to matters of international law really is:

The White Paper insists that whatever arrangements are agreed with the EU the British Parliament is free to change its legislation on any topic of the agreements. This follows from the British view of an absolute sovereignty of each Parliament even not bound by former Parliaments. It is admitted that this could have consequences for the cooperation.

In international law treaties are binding all institutions of a country including Parliament. There is no free choice to comply or not to comply with a binding international obligation. That is why most constitutions involve a parliamentary vote before ratifying a treaty. Normally there are provisions for ending a treaty that have to be observed. If any institution of a country, be it Parliament or justice, does not comply with any part of an international treaty, it is in breach of law.

Then implications for the future relationship are not proportionate to unilateral changes, as the White Paper suggests. Parliament cannot unilaterally introduce peacemeal changes to any treaty. This would destroy trust into the treaty and the relationship based on it. Such a principle would make international agreements very unreliable. „Pacta sunt servanda“ is a principle of the Roman law that has always been incompatible with the tendency to far-reaching flexibility in British case law. But there is no stable international environment, if the sovereignty of Parliament is seen as free to break away from any treaty whenever majorities change.

Without going into details let me say that the institutional arragements proposed in the White Paper are extremely cumbersome and complicated, they would establish a parallel universe of law and procedures besides the EU institutional framework. New parallel structures are costly and time-consuming. The proposed new institutions would be a second bureaucracy to guard the special treaty with Britain. It means more instead of less bureaucracy.

Inside the European Union the Commission is the guardian of the treaties. As a member state Britain has been at the table where decisions were made. The best way to continue that would be to stay in the EU.

The British government asks to trust its tradition of good governance. But how could the EU rely on trusting the UK after the experience the EU made with British politicians going rogue during the Brexit campaign and the debate about implementing it.

The complicated mechanisms for the resolution of conflicts may be appropriate for countries with whom there are not very significant relations and conflicts may be very rare events, but not for an intense relationship like the one between Britain at the EU. Any arbitration will not overrule the European Court of Justice for the EU side like it is not overruling the British Parliament on the UK side – so it would only be an instrument to blame one side for the disruption of the agreements.

The White Paper proposes to make the foreign policy part of the new relationship not legally binding but an issue of ad hoc political coordination, because Britain will follow a completely independent foreign policy. This will work even without any agreements as long as the political will is there, if this will is not there a non-binding agreement is worthless. In an account of give and take this does not mean very much.

However, the EU has an interest in a deep and close cooperation with the United Kingdom on fighting terrorism and international crime. There may be possibilities of special arrangements to cooperate with Britain. But membership of institutions that are part of the EU aquis would mean that Britain takes the advantages of the ever closer union in one field while rejecting it in other field. That is inadmissible. The main purpose of the proposal is to keep Britain inside all of those institutions of home and justice cooperation seen as helpful by the British government. This is cherry picking at its best and not balancing rights and obligations at all.

The deal in Chequers was a deal within the British Cabinet, not a deal with anybody else. What is proposed is often called a „Soft Brexit“. From the text of the White Paper it becomes very clear that the proposal is not very „soft“. It is a timid reaction to the fact that a frictionless border is utterly incompatible with the red lines set out by Her Majesty’s Government.

The main reason for the British position evolving in the direction of smoother border procedures is to find a solution for the border between Northern Ireland and the Republic of Ireland. In fact there were only two options: either a customs border in the Irish Sea between Great Britain and Northern Ireland, or Britain staying in a Customs Union with the EU. To avoid that choice the White Paper invents a fantasy product called a „common customs area“. It is not a full-fledged customs union, but tries to implement similar mechnisms a la carte. It is at best doubtful if that could work – at worst it is incompatible with WTO rules.

The second reason to avoid customs controls at the British border was to „protect the uniquely integrated supply chains and just-in-time processes that have developed across the UK and the EU“. Representatives of British industry had made it clear to the government, that breaking up those chains would be extremely costly for the British economy.

The British government believes that the proposal in the White Paper will avoid the need for customs and regulatory checks at the border. Looking into the proposals in detail shows that this is based on assumptions that for the time being are not given. Neither technical solutions nor any legal basis for the model of the UK cashing in customs duties for the EU do exist. I doubt if the model outlined in the White Paper is workable.

The proposal recognises that it may be necessary to conclude a number of separate agreements and international treaties on several topics to meet all the necessities of the close relationship wanted by the British government. It seems rather difficult to imagine, that such a number of complex treaties can be concluded before the UK is leaving the EU, or even before the transition period is over. It may be necessary to go through the valley of tears where only WTO rules apply before all these agreements can be concluded and ratified. The White Paper describes how useful the proposals are for the British side. The ratification by 27 EU member states – plus some regional assemblies – and by the European Parliament will only be secured if there is a much clearer view how useful this is for the EU and its member states.