The Cabinet was reportedly presented with a Treasury assessment of the impact of four outcomes to the Brexit talks: no deal, a Canadian-type deal, the EEA…and the Government’s own new scheme. This itself should give pause for thought to the suggestion that, other than the EEA and no deal, there is no alternative to the plan agreed at Chequers. It is a statement of the obvious that there will be as many of the last as there are people willing to propose them.
Far more to the point, however, there was one from within the Government itself – a proposal for it to seek “Canada Plus Plus Plus”, as David Davis once referred to it. It is well known that DexEU was working on a draft of the White Paper that would outline this idea during the run-up to the Chequers meeting. We are told that it went through some nine iterations. The last ones were largely cuts for length. None of them have been made public. Until now.
Today, ConservativeHome publishes key extracts from a full draft of this White Paper. They are not from one of the briefer final versions, but they set before our readers the main pillars of DexEU’s approach, which we are told were unchanged in any of those nine drafts. As we write, we don’t have the advantage of also having seen the Government’s own White Paper, apparently to be published later, and thus the capacity to make comparisons between its text and that we publish today.
However, there will clearly be substantial overlap between the two – but, on the basis of the Government document published in the aftermath of Chequers, some key differences too. A central one is the proposed regulatory treatment of manufactured goods. In her Mansion House speech earlier this year, the Prime Minister referred in this context to “a comprehensive system of mutual recognition”. She also set out in her Florence speech last year a three-basket approach to regulation.
“There will be areas which do affect our economic relations where we and our European friends may have different goals; or where we share the same goals but want to achieve them through different means. And there will be areas where we want to achieve the same goals in the same ways, because it makes sense for our economies,” she said. This was the approach agreed at the Chequers meeting of her “war Cabinet” earlier this year. (This last body now seems effectively to be suspended.)
Readers will see that the DexEU White Paper draft is faithful to this ideal of mutual recognition while the new Government plan set out last weekend avoids the term. The new scheme proposes that “the UK and the EU would maintain a common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods, covering only those necessary to provide for frictionless trade at the border”.
The concept of ongoing harmonisation is absent from the DexEU draft. It proposes instead “a commitment to keep UK regulatory standards for good as high as the EU’s”. It claims that mutual recognition and alignment have been agreed in free trade arrangements between the EU on the one hand, and Canada and South Korea on the other, “as well as standalone mutual recognition agreements with New Zealand, USA and Australia”.
It goes on to set out means by which “the principle of having only one approval in one country” can be met – referring by way of example to Switzerland’s use of airworthiness certificates issued by the Swiss authorities that “are automatically recognised across the EU”. The sum of the DexEU approach is that “UK law may not necessarily be identical to EU law, but it should achieve the same outcomes…”this commitment means that in practice, UK and EU regulatory standards will remain substantially similar in the future”.
A common rulebook and substantial similarity are obviously not the same thing, since the latter suggests the possibility of Government-led divergence – “where we share the same goals but want to achieve them through different means,” as Theresa May put it in Florence: the first of those three “baskets”. Ministers will point out that the Chequers statement offered a potential way out of harmonisation by stressing the continuing role of Parliament.
“Parliament would have oversight of the incorporation of these rules into the UK’s legal order – with the ability to choose not to do so, recognising that this would have consequences,” it said. This is a statement of the obvious: Parliament is ultimately free to act as it wishes. But the freedom of MPs to do so should not be confused with ministerial intent of doing so. The DexEU approach gives Ministers elbow-room to seek divergence.
Finally, it will be said that the DexEU approach is impracticable; that the EU would not have accepted it; indeed, that elements of it are incompatible with the EU’s own rules. We don’t for a moment claim to be able to second-guess what might or might not ultimately be acceptable to the Commission nor the EU27. Nor for what it is worth do we agree with everything that is set out in the DexEU plan, though we think that “Canada Plus Plus Plus” is broadly the right negotiating aim.
What we do say is that those same criticisms can be made of the Government’s new plan. It is far from clear, for example, that the EU will accept the restrictions on freedom of movement it claims to offer, or will accept that the rulings of the ECJ be given a lesser status than the conclusions of a joint institutional framework, or will sign up to the proposed Facilitated Customs Arrangement. At any rate, it is one thing to argue that DexEU’s plan wouldn’t work. It is another to claim that it simply doesn’t exist – as we prove today.
We will continue during the day to publish extracts from the DexEU White Paper draft. Readers will be able to compare them with the Government’s when the latter is published. One final point in closing. The DexEU paper claims that “this model, if delivered in full, provides sufficient depth to remove any regulatory implications for the Northern Ireland-Ireland land border”. The bits of the DexEU draft that we will publish will cover agriculture.