The White Paper on The Future Relationship Between the United Kingdom and the European Union: Brexit Trifle or Dog’s Dinner?

This blog by Philip Mead of 12 King’s Bench Walk describes the approach adopted by the Government to negotiations with the EU as set out in the White Paper (Cm 9593) published on 12 July 2018, with particular reference to international and travel claims involving employment and personal injury.

There is a foreword by the Prime Minister and a Foreword by the Secretary of State (ie the Rt Hon Dominic Raab MP).

The Prime Minister’s Foreword highlights that the United Kingdom will leave the Single Market and the Customs Union, free movement will end, as will the jurisdiction of the European Court of Justice. As a result of the initial negotiation with the EU, the UK’s proposals have “evolved”, whilst “sticking to our principles”. It is said: “Our proposal is comprehensive. It is ambitious. And it strikes the balance we need – between rights and obligations. It would ensure we leave the EU, without leaving Europe. … It would preserve the UK’s and the EU’s frictionless access to each other’s markets for goods, protecting jobs and livelihoods on both sides, and propose new arrangements for services. … It would end free movement, taking back control of the UK’s borders. … It would maintain our current high standards on consumer and employment rights and the environment.

The White Paper is structured round there being an “unprecedented economic partnership”, as well as an “unrivalled security partnership” and an “unparalleled partnership on cross-cutting issues such as data, and science and innovation” in conjunction with a “new model of working together” (see the Foreword of the Secretary of State).

The proposed Economic Partnership is founded on the establishment of a free trade area “for goods” (thereby avoiding the need for a hard border between Northern Ireland and Ireland) in conjunction with new rules for services and digital, as well as reciprocal commitments to ensure that “UK businesses could carry on competing fairly in EU markets, and EU businesses operating in the UK could do the same”. There are thus various levels to the Brexit trifle: (i) rules as if the UK continued to be a member of the EU; (ii) rules as if the UK was an EFTA member; (iii) reciprocal rules agreed as part of a new partnership under an Association Agreement.

The free trade area would involve a commitment by the UK to “maintain a common rulebook for goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods, covering those necessary to provide for frictionless trade at the border.” (page 15, para 11) The UK “would also seek participation – as an active participant, albeit without voting rights – in EU technical committees that have a role in designing and implementing rules that form part of the common rulebook.” “In the context of a common rulebook, the UK believes that manufacturers should only need to undergo one series of tests in either market, in order to place products in both markets. This would be supported by arrangements covering all relevant compliance activity, supplemented by continued UK participation in agencies for highly regulated sectors including for medicines, chemicals and aerospace.” (page 20, paras 26 and 28)

Services on the other hand, including tourism, would be separately treated in accordance with the WTO’s General Agreement on Trade in Services (GATS). Having signalled the end to free movement of people, the White Paper indicates that further details of the UK’s future immigration system will be set out in due course, once the Migration Advisory Committee has reported (due in September 2018). It is however proposed that there should be “reciprocal arrangements, consistent with the ending of free movement, that …. allow citizens to travel freely, without a visa, for tourism and temporary business activity; … and are as streamlined as possible to ensure smooth passage for legitimate travel while strengthening the security of the UK’s borders; …” “The Government wants UK and EU nationals to continue to be able to use the European Health Insurance Card (EHIC) to receive healthcare should they need it while on holiday.”. (pages 33-34, see paras 76, 83, 84)

Under the heading Open and fair competition, the White Paper proposes “committing to a common rulebook on state aid, to be enforced and supervised in the UK by the Competition and Markets Authority (CMA); maintaining current antitrust prohibitions and the merger control system with rigorous UK enforcement of competition law alongside strong cooperation with EU authorities; committing to high regulatory environmental standards through a non-regression requirement; … committing to high levels of social and employment protections through a non-regression requirement for domestic labour standards; and committing to high levels of consumer protection.” (page 38, para 108)

Further, in relation to “Socio-economic cooperation” the White Paper proposes a patchwork of agreements in various areas including air transport, road transport, maritime, rail, energy, civil nuclear, civil judicial cooperation, intellectual property and audit and accounting. So far as civil judicial cooperation is concerned, it is stated that the UK “will therefore seek to participate in the Lugano Convention after exit”. “The UK is therefore keen to explore a new bilateral agreement with the EU, which would cover a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law, and recognition and enforcement of judgments in civil, commercial, insolvency and family matters. This would seek to build on the principles established in the Lugano Convention and subsequent developments at EU level in civil judicial cooperation between the UK and Member States.” (page 46, paras 147-148)

In the separate Chapter of the White Paper dealing with a proposed Security Partnership, it is to be noted that the White Paper states: “The UK is committed to membership of the European Convention on Human Rights (ECHR).” and “The agreement should also include a mutual commitment to individuals’ rights, noting the UK will remain a party to the ECHR after it has left the EU.”  (page 52, para 5(e) and page 56, para 19). Under the heading of Health security, the UK also proposes continuing collaboration and cooperation in relation to disease prevention and control, drug addiction and control, surveillance and monitoring of the spread of diseases (page 72, para 113).

Upon exit, the principles of direct effect and supremacy of EU law will no longer apply in the UK (page 84, para 3). However, in relation to provisions governed by the common rulebook, which can be relied upon by individuals and businesses, there will be a duty to interpret the provisions consistently with EU law by paying due regard to CJEU caselaw (see page 89, para 25(b) and page 92, para 35).

From the above overview, it can be seen that product standards including for medicinal products are likely to fall within the scope of the common rulebook; free movement of persons and services in terms of travel and tourism are likely to fall outside the common rulebook but subject to reciprocal treatment, which it is assumed will include provision in relation to the motor insurance directives, whilst civil judicial cooperation will be addressed as if the UK were part of EFTA. In relation to consumer protection and employment and social rights the UK will maintain standards as at the Brexit date.

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