Theresa May should keep David Davis’s draft of the White Paper in her back pocket

Theresa May should keep David Davis’s draft of the White Paper in her back pocket

After Hugh Bennett’s masterly exposition of the Brexit White Paper, further comment almost seems superfluous. Sadly, with so many risky shoals and reefs now exposed, even pencilling in a few more minor chart markings may come in handy.

It is an overworked metaphor to claim that politics is being treated as a ‘game’. In the case of EU negotiations though, this is in fact the literal truth. There is now, available to order, the boxed set Brexit the Board Game.

Two to four players take one of six random objectives, ranging from a Minimalist Brexit through to a ‘Secret Remainer’ mission. Success is measured by getting points cards into the end deal: a big end points score means the UK remains heavily entangled with the EU, and a low one means a loose inter-governmental arrangement. Complications are added by the occasional heated vote in Parliament moving wobbly MPs and the slight prospect of another referendum being fought over.

I mention this because one of the fundamentals in how the points cards operate is that some of them cannot be played alongside one another, because the aspirations are incompatible.

This is a reality that has now led to two distinct White Papers being separately produced; one (part-leaked) hailing from DExEU, and the other which emerged from the Cabinet Office and percolated through Chequers. Ill-judged attempts to produce some chimera or zeedonk from mating them have failed. It has only been in the course of the last week that the decision has been made to finally pick one – or seemingly rather to coerce the Cabinet into going along with the option the Whitehall civil servants picked for them.

If you go back to X-raying the ribs and shin bones of the EU’s many forms of trade deals, all of them fall into one of either of two types. Either they are intergovernmental or they are supragovernmental.

The former allows for mutual recognition of equivalent standards, based on trust and competence. They allow for differences in style, providing the end result is met – toasters don’t melt and wheels don’t fall off.

The latter model by contrast demands far greater uniformity, a jurisdictional hierarchy of oversight and policing, and direct legal obligation. It thus also requires a common system to manage it, which is associated with an additional and more distant level of government.

The latter option might be seen purely in corporate terms as more efficient and convenient. But the former is more democratic and adaptive. The latter allows for administrative unity and international projection, the former for cutting red tape from the vast array of purely internal rules. The choice is a pay-off. The Brexit deal similarly, in basing itself upon one or the other approach on a sliding scale, has to be one too.

Politically, the Commission is a jealous guardian of the treaties. It also has long term aspirations to expand the system it oversees, thanks to the institutional dream of “ever closer union”. It famously hates the Swiss deal because it says it is “complicated” – never a satisfactory defence for an institution that views democracy generally as an awkward commodity. It is also far more obsessed with the Cult of the Four Freedoms than most diplomats I have ever talked to. A ‘Canada with pluses’ deal is thus as good an intergovernmental deal as the UK is going to get: how many pluses would depend on whether the Council members rope in the Commission. The question that should have been asked is whether DExEU’s deliverables are enough.

What is clear from the keynote Road to Brexit speeches (collated here) is that UK negotiators themselves have placed considerable emphasis on the UK starting from a point of complete convergence and being already a trusted regulator and follower of the rules. The point might otherwise have been underlined by the release on Thursday of the annual report showing how well various countries were doing in being Single Market-compliant.

Whitehall clearly has been operating on the expectation that a deal is reachable on a basis of gradual but ultimately potentially extensive divergence. Such in particular appears to have been the measured plan of DExEU, until the Chequers golem was unleashed. The White Paper itself contains ghosts in the machine from the original draft, that on two occasions leave the Cabinet Office looking like it is trolling itself.

But intergovernmentalism has now been dropped. Under the Chequers model we will be now limbered to the Single Market through a Shadow EEA system, without the safeguards even of the Norway approach.

A fuller audit of some of the key costs and uncertainties are set out in the latest Red Cell paper. Key concerns include the current lack of a clear ‘Careening Clause’ that will now discourage future divergence; regulatory expectations for standards organisations that will hamper US and other FTAs; an apparent willingness (inserted only in passing) to sign up to a new generation of EU Regional and EU Social Funds; a commitment to remain superglued to all the painfully-familiar Human Rights problems; the prospect of being associated with EU Cultural (aka propaganda) programmes; troubling commitments to key aspects of JHA which even Denmark has opted out of; and an alarming insouciance over future ties to the EU’s accelerating Defence Union and its new Single Market in Defence. Even the commitment over limiting fisheries access to EU trawlers appears to be going the way of Lake Baikal.

Certain of these could yet be addressed by issuing clarifying instructions to the negotiators. The problem is that those who wrote the draft will now be those negotiating it. A commitment to despatch the Brexit Secretary rather than an unaccountable civil servant to immediately take over the negotiations would be an important indicator from Downing Street. That still of course also leaves the prospect, indeed likelihood, of impossible demands now arising from the other side.

And what of the test run of our Brexit board game? It ended badly. The end deal was referred in the last minute back to Parliament, where pro-Remain rebels scuppered it and discarded all the points cards. April 2019 came with absolutely nothing agreed, not even a Mitigated No Deal. Everyone lost.

That, everyone will agree, is a scenario to be avoided. The best way to do so is to keep the DExEU’s own draft in the frame for whatever happens next. It was by far the better of the two Whitehall options; and it now constitutes the Developed Default in the making.