A disappointing Brexit White Paper makes for disappointing comments

Theresa May's Government has published the White Paper on The United Kingdom’s exit from and new partnership with the European Union earlier today. It is an extremely disappointing document that, unfortunately, only allows for disappointing comments. The only remarkable aspect of the Brexit White Paper is the number of dimensions in which it is disappointing.

Its timing is probably one of its most disappointing aspects. Given that the House of Commons debated the European Union (Notification of Withdrawal) Bill and voted its passing to Committee stage only yesterday, today's publication of the Brexit White Paper mimics an absurd claim of power by the Government over the Parliamentary scrutiny of Brexit (the power to unduly limit and restrict it).

On the contrary, publication of the White Paper before the Parliamentary debate would have created the double effect of avoiding the impression that Government is only very reluctantly complying with the UK Supreme Court's requirement for Parliamentary approval of the giving of notice under Article 50 TEU (which would have been positive for the Government), but would also have allowed MPs to criticise the Government for the appallingly poor quality of the document (as per below, which would have been clearly negative for the Government) before even moving to the discussion of amendments.

Clearly, then, the timing of the publication of the Brexit White Paper demonstrates the Government's insecurity about its content and its overconfidence about the ability to push for (hard) Brexit no matter what. In my view, this is a dangerous combination of attitudes.

The content of the Brexit White Paper is also extremely disappointing. It is not more than a minimally expanded version of the speech given by Theresa May PM some weeks ago, coloured with some superficially analysis macroeconomic data, and most of its sections are simply a very superficial account of the current state of EU law coupled with the (unfounded) hope and half promise that Theresa May PM's Government will obtain a great deal from the EU.

Twitter is already full of criticism based on obvious mistakes in the Brexit White Paper, and I am sure that the analysis that will emerge in blogs and newspapers in the next few hours and days will not be more positive. However, I also find it unlikely that much of the criticism will be able to go beyond general issues or points already raised against Theresa May PM's speech, as the Brexit White Paper has not brought any meaningful additional detail that we can analyse. In any case, it may be worth highlighting that I found the sections on the creation of an alternative dispute resolution mechanism to substitute the ECJ's jurisdiction (section 2 plus Annex A) and on trade with the EU (section 8) particularly disappointing.

Section 2 on 'Taking control of our own laws' is very confusing and seems to me to miss several important points. The fundamental issue it does not address is the extent to which future case law of the ECJ will still need to be applied and followed by UK courts and in the UK more broadly, simply as a result of the incorporation of EU law into domestic law, or as an non-renounceable element of the EU's regulatory architecture of the single market.

This has implications in a number of dimensions, such as the difficulty in coordinating the effects of the Great Repeal Bill (which is meant to consolidate EU law into UK law as of the time of withdrawal) with the effects of the ECJ's interpretation of EU law, which is most frequently not time bound and thus has retroactive effect. A simple example would imply a situation where UK withdrawal from the EU happens in 2019 and later, say in 2021, the ECJ interprets a provision of EU law that was incorporated into UK law by the Great Repeal Bill. In that case, lawyers will feast with the litigation that will ensue from the difficult issue of determining the interpretation to be given to the 'nationalised' provision of EU law and the extent to which it would be consistent with the (Parliamentary) intention of using the Great Repeal Bill to 'download' EU law into UK law without any amendment at that point (or barring ulterior Parliamentary intervention or explicit reform through secondary legislation).

But even without going that far in creating a severance between UK and EU law, there is an unknown number of trade-related areas that will require continued compliance with ECJ case law as a technical matter and as far as the UK intends to have any access to the single market. For example, if the UK wants to engage meaningfully in trade with the EU, one of the main issues will be the need for continued compliance with technical standards (to which the Brexit White Paper also refers, but in a confusing or slightly misleading way in section 8), and these are bound to be increasingly subject to ECJ interpretation, particularly after the assertion that they are part of EU law and thus subject to its jurisdiction in the recent case of James Elliott Construction Limited v Irish Asphalt Limited (C-613/14, EU:C:2016:821).

Disposing of these very relevant difficulties in a simple paragraph that boasts that "We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law." is a grossly misleading oversimplification.

Section 8 on 'Ensuring free trade with European markets' is not better. From a legal perspective, the point I find most internally contradictory in this section is the fact that the Brexit White Paper indicates continuously how several areas of regulation of the internal market for services hinge on the existence of a single regulatory framework at EU level, on legal certainty (which is logically and legally based on the interpretation of that regulatory framework by the ECJ) and on an effective system of civil judicial cooperation as well as cooperation between regulators and independent enforcement agencies.

Not get bogged down on detail, I fail to understand how this is a model that can be replicated without the need for the UK to comply with EU law (as interpreted by the ECJ, see above) and, even if that is possible, how could that be in line with a reduction of red tape and administrative burden for companies that would, by implication, need to comply with more than one regulatory framework--unless they were only active in the UK. Generally, the logic of wanting to create mutual recognition and at the same time pushing for regulatory disparity seems starkly at odds with the logic of regulatory architecture of the single market. Similar problems arise with the Brexit White Paper veiled insinuation that the UK can still be member of pan-EU agencies despite not being a Member of the EU/EEA. Overall, this section simply does not offer a logic that could pass critical muster.

From that perspective, the Brexit White Paper correctly identifies that "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 others’ markets, to continue when we leave the EU through a new comprehensive, bold and ambitious free trade agreement." But it is plainly wrong in the implications it tries to derive from this. The blatantly obvious impossibility of this logic is that, whereas in other types of trade negotiations the harmonisation of systems will result in a reduced administrative burden for both the public and private sectors, in this case the need to dissociate a truly integrated system into two coordinated systems will necessarily create those burdens for both the public and the private sector. And this is what makes this negotiation so riddled with impossibilities and so suicidal: it is a negotiation to move from a win-win to a lose-lose scenario, and the only thing the negotiating parties can hope is to minimise the loss. In my mind, this is an irrational process to engage with, and the only justification for it is that Theresa May PM's government hopes for benefits that no one else identifies. If nothing else, the Brexit White Paper has done nothing to provide evidence of the existence of those potential gains or of the feasibility of the (under-worked) plans to unleash them.

Overall, thus, I find the Brexit White Paper extremely disappointing. And I can only blame myself for having had any hopes that it would not be so.