09 Feb 2017

The day after the conclusion of the Second Reading of the European Union (Notification of Withdrawal) Bill, the Government published its White Paper setting out Theresa May’s plans for leaving the European Union.

The paper reflects the 12 principles for Brexit that the Prime Minister set out in her Lancaster House speech last month. The white paper states that it is taking these 12 principles and setting out the basis for "12 priorities", 'The United Kingdom's exit from and new partnership with the European Union', Cm9417 (the White Paper).

Summarised below are what the White Paper says about each of the 12 priorities.  

What the White paper clearly restates is that the Government will trigger Article 50 of the Treaty on EU by the end of March 2017, to begin the process of exit.

1. Providing certainty and clarity

The White Paper repeats what was in the PM's speech, that Government will introduce a Great Repeal Bill to remove the European Communities Act 1972 from the statute book and convert the ‘acquis’ – the body of existing EU law – into domestic law.

The wording of the speech and White Paper are almost identical, but for the introduction of the caveat: "wherever practical and appropriate, in front of, "the same rules and laws will apply on the day after we leave the EU as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate."

The White Paper states that the Government’s "general approach to preserving EU law 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." But it also states that "domestic legislation will also need to reflect the content of the agreement we intend to negotiate with the EU."

The White Paper reveals that there will be another a white paper just on the Great Repeal Bill to provide more detail about the Government's approach. The bill may be formally announced in the Queen’s Speech, and published shortly after it. No date has been announced yet for the Queen's Speech this year; last year's took place on 18 May 2016. 

Funding commitments already made by this Government

The White Paper states that all European Structural and Investment Funds (ESIFs) projects signed, or with funding agreements that were in place before the Autumn Statement 2016, will be fully funded, even when these projects continue beyond the UK’s departure from the EU. And that this includes agri-environment schemes under the Common Agricultural Policy.

2. Taking control of our own laws

The White Paper repeats what the PM said in her speech: that the jurisdiction of the Court of Justice of the European Union in the UK will be brought to an end.

What the White paper adds is to state that the UK will seek to agree a new approach to interpretation and dispute resolution with the EU; that a new dispute resolution mechanism will be needed, particularly for any disputes between the UK and EU on trade. It says that the "actual form of dispute resolution in a future relationship with the EU will be a matter for negotiations between the UK and the EU" and suggests that different dispute resolution mechanisms could apply to different agreements, depending on how the new relationship with the EU is structured.

This is followed by a statement that "any arrangements must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens."

'3. Strengthening the Union'

In her speech the PM said that she looked forward to working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom. The White Paper states that the Government remains fully committed to the Belfast Agreement and its successors. And that it will work with the devolved administrations on an approach to returning powers from the EU that works for the whole of the UK.

In her speech the PM stated that the Government had received a paper from the Scottish Government, and looked forward to receiving a paper from the Welsh Government. Both papers, she said would be considered. The White Paper makes no reference to these 'papers' and adds little to what has already been said. It provides no indication of a plan for what might happen if, for example, Scotland were to vote for independence in 2018 or 2019.

4. Protecting our strong historic ties with Ireland and maintaining the Common Travel Area

The White Paper states: "We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system."  It goes on to say: "When the UK leaves the EU we aim to have as seamless and frictionless a border as possible between Northern Ireland and Ireland, so that we can continue to see the trade and everyday movements we have seen up to now." Beyond this, nothing further can be extracted from the White Paper on this point, and there is no indication of how a free travel zone would work post Brexit.  

5. Controlling immigration

In her speech the PM said that, "the message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver."

The White Paper states that "We will have control over the number of EU nationals coming to the UK." (…) "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 White Paper also contains the statement that, "In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law." It further states that implementing any new immigration arrangements for EU nationals and the support they receive will be complex, and that Parliament will have an important role in considering these matters further. There may be a phased process of implementation to prepare for the new arrangements, which may give businesses and individuals enough time to plan and prepare for them.

The White Papers states that the Government expects to bring forward a separate bill on immigration, but does not indicate a timetable for this. It may be expected that such a bill will be included in the Queen's Speech sometime towards the latter part of May.

6. Securing rights for EU nationals in the UK and UK nationals in the EU

The PM's speech revealed that while some EU leaders favoured an immediate agreement, she also stated that one or two other EU members did not favour an immediate deal on this issue. The White Paper again reflects this. It states that the Government would have liked to resolve this issue ahead of the formal negotiations, and although many EU Member States favour such an agreement, this has not proven possible. The White Paper states that the UK remains ready to give people the certainty they want, and to reach a reciprocal deal with European partners at the earliest opportunity.

7. Protecting workers’ rights

The White Paper adds little on this topic and reveals no new proposals. It states that the Government "will protect and enhance existing workers’ rights. It states that "The Great Repeal Bill will maintain the protections and standards that benefit workers."  

A commitment to review employment law is repeated. The White Paper states that the Government will ensure that "the voices of workers are heard by the boards of publicly-listed companies." referring to the Government's Green Paper on corporate governance published in November 2016. Again this reflective of previous comments from the Secretary of State for Business, Energy and Industrial Strategy, Greg Clarke's with which he indicated that the PM wants workers to be represented, but not necessarily by having an employee on the board.

8. Ensuring free trade with European markets

UK and EU trade

At the beginning of January the PM said that the Government would not "seek membership of the Single Market. Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious Free Trade Agreement."

The White Paper restates this and says that the Government will:

  • forge a new strategic partnership with the EU, including a wide reaching, 'bold and ambitious free trade agreement'
  • that the new relationship should aim for the freest possible trade in goods and services between the UK and the EU
  • seek a mutually beneficial new customs agreement with the EU.

The White Papers states that the Government expects to bring forward a separate bill on customs. Like the separate bill in immigration. It might be anticipated that this will be formally announced as part of the Queen's Speech later in May 2017.

Under the following headings the White Paper identifies these further ambitions for the negations:

  • Goods: a future relationship with the European Standards Organisations that continues to support a productive, open and competitive business environment in the UK
  • Agriculture, food and fisheries: a mutually beneficial deal that works for the UK and the EU’s fishing communities
  • Services (excluding Financial Services): the freest possible trade in services between the UK and EU Member States
  • Financial Services: the freest possible trade in financial services between the UK and EU Member States
  • Energy, transport and communications networks: maintaining close and effective arrangements for civil nuclear cooperation, safeguards, safety and trade with Europe and our international partners. The White Paper states that leaving the EU will also entail leaving Euratom, so that the means for cooperation on nuclear matters will be a matter for the negotiations
  • Air services: bilateral air services agreements with countries like the US, where the UK's air services arrangements are currently covered by an agreement between the EU and the US
  • Communications networks: ensuring the ability to trade as freely as possible with the EU and supporting the continued growth of the UK’s broadcasting sector
  • Data transfer: The White Paper also states that the Government will seek to maintain the stability of data transfer between EU Member States and the UK
  • Environment: the White Paper states that the Great Repeal Bill will bring the current framework of environmental regulation into UK and devolved law
  • Climate: the White Paper states that the Climate Change Act 2008 targets will continue through the system of five-yearly carbon budgets
  • European Union agencies: the Government will discuss the future status and arrangements for the following agencies which support EU Member States and have a regulatory function:
    • European Medicines Agency (EMA)
    • European Chemicals Agency (ECHA)
    • European Aviation Safety Agency (EASA)
    • European Food Safety Authority (EFSA)
    • European (Financial Services) Supervisory Authorities (ESAs).
  • Customs arrangements: the best possible deal for the UK without being bound by the EU’s Common External Tariff and without participating in the Common Commercial Policy
  • The EU budget: the negotiations will clarify what European programmes the UK may wish to continue to participate in and what an appropriate contribution might be.

9. Securing new trade agreements with other countries

The PM's speech said she wants "Britain to be free to establish [its] own tariff schedules at the World Trade Organisation (WTO)". The White paper again simply restates this without any further indication of what impact falling back on WTO rules as the basic framework for trade would have on trade, investment and the economy as a whole. Going forward, the Department for International Trade will be the lead department and the White Paper includes a statement that "in due course the Government will want to consult business and other interested parties on the detailed positions it should adopt".

10. Ensuring the UK remains the best place for science and innovation

Having placed science, research and innovation at the heart of the recently published Industrial Strategy (23 January 2017), the White Paper states that the Government would welcome agreement to continue to collaborate with European partners on major science, research and technology initiatives. It states that the Government will work with the European Commission to ensure payment when funds are awarded for bids made directly to the Commission by UK organisations (including for Horizon 2020, the EU’s research and innovation programme and in funds for health and education), institutions, universities, and it states that businesses should continue to bid for funding.  

11. Cooperating in the fight against crime and terrorism

The UK will look to negotiate the best deal with the EU to cooperate in the fight against crime and terrorism. It will seek a strong and close future relationship with the EU, with a focus on operational and practical cross-border cooperation. The UK will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe. The White Paper states that public safety in the UK and the rest of Europe will be at the heart of this part of the negotiation.

12. Delivering a smooth, orderly exit from the EU

This section of the White paper states that the Government wish to avoid, what it refers to as “a disruptive cliff-edge".

The UK will not seek "some form of unlimited transitional status", but will seek "a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements (…)."

The White Paper restates that "the Government is clear that no deal for the UK is better than a bad deal for the UK" and at paragraph 1.12 states that "The Government will then put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament."

In the event that no deal is reached the White Paper states that the Government will ensure that the UK's economic and other functions can continue, including by passing legislation as necessary to mitigate the effects.

The European Union (Notification of Withdrawal) Bill, which so far has passed two days of debate without being altered, approaches its final stages in the House of Commons. But with another two years’ negotiation process ahead, it looks like the battle has only just begun.