The EU wants to negotiate – but the Government has no room whatsoever for concessions

The EU wants to negotiate – but the Government has no room whatsoever for concessions

The last few weeks have seen an unprecedented level of turmoil in government and Parliament. It started with the unexpected announcement of an impending  White Paper outlining what we were briefed was to be the Government’s proposed future relationship with the EU. But within a matter of hours, it became clear that apart from the Prime Minister and a couple of chosen Cabinet Ministers, the rest of the Cabinet hadn’t even seen it.

Notwithstanding that, the Cabinet were to retire to Chequers within days and there they were to be asked to agree to it. I mention that this was unexpected because we were all working under the assumption that the Brexit Secretary, David Davis, was completing a White Paper – yet, as we discovered, astonishingly, he was not one of those who had been shown this ‘new’ Downing Street White Paper in advance.

What followed was in essence a ‘bounce’ as Cabinet ministers were given an ultimatum to take it or leave it. For some reason, they could not amend it in any serious way. We later discovered that this was because Chancellor Merkel in Germany and some in the European Commission had been briefed on its contents before the Cabinet (and even before the Brexit Secretary as well).

What made this even worse was that, for whatever reason, in advance of the Chequers meeting, the media received some savage attacks on senior Cabinet ministers which they were clear came from Downing Street, or as one astonished journalist said to me, “the guns of Downing Street have been turned on those in the Conservative Party who voted to leave the EU”.

David Davis and Boris Johnson found that remaining in a Cabinet under such terms was impossible and so they rightly resigned.

I, like many, many others have deep misgivings about this new White Paper. Principal amongst them is the fact that, having left the EU on 29th March 2019, we will then proceed to sign up to the EU’s rule book covering goods and agri-products. Although this has been described as a joint rule book, as Martin Howe QC has pointed out, it is no such thing. It is the EU’s rule book and it governs how they regulate those products and will effect so much of what we do. Although briefings from Downing Street have since asserted that these rules are a joint enterprise, it turns out that they are no such thing.

Despite assurances to the contrary, this means that the UK will have to apply the EU rules to all goods produced domestically for the UK market, and to all goods imported from non-member states for consumption in the UK domestic market. It is this which makes a full trade deal with the US so difficult. They will rightly expect some form of mutual recognition of each other’s regulatory standards, yet we will not be able to offer that in these two vital areas.

Another example of the loss of control for the UK inherent in this proposal is that despite what the Government has assured us, in reality, the UK will have no veto against the dispute being sent by the Commission to the independent arbitration panel. As Martin Howe put it:

“At this point, if the dispute involves a point of EU law, the arbitration panel must refer that point to the ECJ for a ruling and the UK has no veto. In such a case, it will act as a postbox for referring issues to the ECJ and issuing judgments which rubber stamp the ECJ’s rulings.”

Intriguingly, of all the models to follow for such a system, it now turns out that the UK has chosen one of the weakest – the system of adjudication adopted from the EU Association agreements of the former Soviet republics of Ukraine, Moldova and Georgia.

However, despite these examples of the weakness of the White Paper, it is now the Government’s official offer to the EU and it is this that they hope will form the centre piece of the ‘negotiation’. This word worries me and should worry those ministers who chose to stay in the Cabinet, despite their misgivings about the policy. They will need to answer the simple question: bad as it is, and clear as it is that any concessions will make it worse, where will they stand on any further watering down?

Let’s measure this question against the Prime Minister’s own words: “We will take back control of our borders, our laws and our money”.

So let’s start by looking at freedom of movement – our borders.

Already the Commission is making noises that they are not prepared to let us take back control of our migration policy if we want access to the market. Even a cursory look at the White Paper shows how the Government has left all sorts of carefully crafted sections which are clearly indicators of its willingness to ‘engage’ on this. One very good example is the section dealing with access to benefits by EU migrants. As members of the EU, the UK has to allow EU citizens to claim and receive both in-work and out-of-work benefits and full family benefits as well – despite the fact that they will have made no financial contribution to the UK at the point of claim.

In the last year of published figures on this, these claims totalled £4bn-£5bn. I have long believed that this open access to benefits is what enabled EU citizens to take work at very low wages, often moonlighting at the same time whilst being forced to live in squalid conditions. Yet even in the White Paper, the Government has indicated that they would be prepared to give further access to benefits for EU citizens after Brexit. That would, I believe, be absolutely unacceptable. A work permit system which applies equally to all economic migrants is what is required and there should be no special exemptions. Importantly, there can be no access to such benefits unless they have made significant financial contributions in the UK. That is what I believe people voted for.

Another area is the agreement on money. The EU has demanded that regardless of whether we achieve a trade deal, the money we have agreed to pay is given to them. Dominic Raab, the new Brexit Secretary, seemed to deny that was the case, then within hours, Theresa May took over negotiations and the Government media operation briefed that Raab had been side-lined. What is our position if we don’t strike a trade deal? Are we prepared to concede that we will pay the money over or do we withdraw the offer?

Finally, our laws. Perhaps the most critical reason why people voted to leave the EU was to take back control. This is best embodied in the ability to make our laws within the UK and have them adjudicated by British courts. The most debilitating part of the 1972 European Communities Act is the way it maintains that EU law is supreme. Rulings made on regulations have been applied immediately by UK courts. If leaving the EU meant anything, it meant breaking that link and obtaining the freedom to once again establish the supremacy of Parliament. Yet already we see that the ECJ will, as a result of the proposal in the White Paper, continue to work under the principle of the supremacy of the ECJ, unless the Government changes that and restores the original purpose of the vote to Leave.

These are but three areas of concern and there are others as well. Whatever our views on the White Paper, the reality staring the Government in the face is the EU’s desire to ‘negotiate’. By that they mean to force the Government tighter and tighter into their authoritarian and secretive embrace. That is why I believe that the Government has no room to make such concessions and that the language of ‘negotiation’ should be dropped.

In 2016 the UK voted to take back control of its laws, borders and money. Unless our approach to these negotiations changes radically and we remember how at the last election we made these red lines clear, we will sadly have moved from take back control to hand back control.