The White Paper on the Future Relationship between the UK and the EU

Jane Lambert

Art 50 (2) of the Treaty of European Union requires the European Union to "negotiate and conclude an agreement with [a departing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union." The white paper on The Future Relationship between the United Kingdom and the European Union Cm 6593 is intended to satisfy the need for a framework for the future relationship with the EU to be taken into account.  Its defects and deficiencies are obvious but they probably do not matter because nobody expects its proposals to be accepted lock, stock and barrel by the remaining member states of the EU.  The purpose of the white paper is short term.  It is simply to address the requirements of art 50 (2).

According to Michel Barnier, some 80% of the provisions of the withdrawal agreement required by art 50 (2) have already been agreed (see Press statement by Michel Barnier following the July 2018 General Affairs Council (Article 50)  20 July 2018).  The draft agreement provides for an implementation period between 30 March 2019 and 31 Dec 2020 during which time EU law will continue to apply to the UK even though it will cease to be a member state.  At the end of that period it is hoped that a new agreement will be in place to govern relations between the UK and the 27 remaining states.

The white paper is a political expedient contrived to calm the nerves of employers in the aerospace, automotive and other industries while satisfying the demands of those seeking an end to British contributions to the EU budget and the jurisdiction of the Court of Justice of the European Union, the restoration of control of immigration from the EU 27 at ports and airports and so on.  Monsieur Barnier recognized the white paper for what it was when he described it as "le fruit d'un débat très intense au Royaume-Uni qui était nécessaire" ("the fruit of a very intense debate in the UK which had been necessary") adding that everyone is well aware that that debate is not over yet.  Although the white paper is not all bad - I found its commitments on continued judicial cooperation on civil and commercial matters and its commitment to the Unified Patent Court and the unitary patent very much to my liking (see Jane Lambert Like the Curate's Egg - The White Paper on the Future Relationship between the UK and EU 18 July 2018 NIPC News) - it is unlikely to form the basis of a permanent relationship for all the reasons that Monsieur Barnier gave in yesterday's press statement.

However, that does not mean that it is without value.  As Monsieur Barnier also said:

"De notre point de vue, il y a plusieurs éléments qui ouvrent la voie à une discussion constructive pour la déclaration politique sur notre future relation, par exemple :

• la proposition d'un accord de libre-échange, qui devrait constituer le cœur de notre future relation économique. On rejoint là une proposition clef des guidelines du Conseil européen : un ambitieux free trade agreement;

• des engagements en matière de level playing field, notamment en ce qui concerne les aides d'Etat et les règles sur l'environnement et l'emploi;

• et une large convergence de vues sur de possibles et nécessaires coopérations en matière de sécurité intérieure et extérieure.

Le Royaume-Uni apporte des garanties en matière de protection des droits fondamentaux et reconnaît la Cour de justice de l'UE comme seul arbitre du droit européen.
Cela facilitera les échanges de données entre le Royaume-Uni et nous, et cela ouvre donc la possibilité d'élargir notre offre en matière de coopération sur la sécurité interne en particulier."

A political declaration on the future relationship is how the Commission and remaining member states interpret the requirement in art 50 (2) to take account of the departing state's future relationship with the EU.

Getting a withdrawal agreement that will lead to a transitional period between 29 March 2019 and the 31 Dec 2020 in which the UK will be formally outside the EU but the EU treaties. legislation and case law of the Court of Justice will continue to apply is probably the best for which those who wish to see as little disruption as possible to the UK's relationship with the EU can realistically hope.  A second referendum on the withdrawal terms is attractive to some but it would require legislation and time to campaign and the 2 year notice period provided by art 50 (3) runs out in less than 9 months.

Even though 80% of the text of the withdrawal agreement is agreed, it is by no means certain that we will get it.  The question of what should be done about Ireland (and to a lesser extent Gibraltar) remains as intractable as ever.  There are many MPs in the Conservative Party and even one or two in Labour who would relish an abrupt end to the UK's relationship with the remaining EU member states regardless of any inconvenience, discomfort and hardship that it would cause in the short term in the hope that it would lead to a complete reordering not only of our trade and foreign relations but also of our economy and society. I doubt that many of my clients or readers would want that to happen but such an outcome is very much on the cards and they are advised strongly to prepare for it.

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