Where might the Government’s Brexit White Paper lead us?

The publication of the White Paper last week marked a further important step in the Government seeking to give Brexit concrete legal form, following the passage in June of the European Union (Withdrawal) Act. Admittedly the proposals now have to avoid being derailed by divisions within the Cabinet and the Conservative Party and opposition in Parliament, not to mention incendiary tabloid interviews by passing US presidents… 

Putting those doubts to one side, the overwhelming impression given by the White Paper is that the UK wishes many things to carry on much as they are at present, but with different institutional form centred on a new Association Agreement. A “Governing Body” would provide "political direction" for UK-EU relations, while a "Joint Committee" would "underpin its technical and administrative functions". The UK would pay for continued membership of several EU agencies and bodies and follow many EU laws - the "common rulebook" for trade in goods has been a particular focus of public discussion - while accepting it would no longer have a vote on them.        

Non-regression of employment rights

Of great significance, there is a commitment to “non-regression principles” and specifically a “non-regression requirement for domestic labour standards". This means that laws should not be changed if it entails reducing the level of protection of collective and individual rights. The UK adds that both sides should "uphold their obligations deriving from International Labour Organisation commitments".

This is interesting, because there has been a good deal of speculation about a post-Brexit “bonfire” of employment protections - think working-time rules, the Agency Workers Regulations, uncapped discrimination damages. The approach of the White Paper makes this outcome far less likely, and indeed potentially legally impossible.

Labour mobility

While making clear that free movement of workers must come to an end, the UK nevertheless wants to agree a "framework for mobility" to “support businesses to provide services and move their talented people”. This would include including agreeing “reciprocal provisions on intra-corporate transfers that allow UK and EU-based companies to train staff, move them between offices and plants and to deploy expertise where it is needed, based on existing arrangements with non-EU countries”. 

The UK also wants to discuss how to facilitate “temporary mobility” of scientists, researchers, self-employed professionals, employees providing services and investors. The Government believes there should be “reciprocal arrangements on the future rules around some defined elements of social security contributions”, and in particular that “workers should only pay social security contributions in one state at a time”.

Data protection

There are a number of proposals on data protection. The UK wants an "Adequacy Decision" from the EU, confirming that EU businesses can transfer personal data to the UK without having to satisfy themselves that sufficient safeguards are in place each time data is transferred. However, it also wants to go further than this in two key respects by:

• providing for ongoing cooperation between the UK’s Information Commissioner’s Office and European data protection authorities; and
• establishing a "clear, transparent framework" to facilitate dialogue, minimise the risk of disruption to data flows, and support a stable relationship between the UK and EU to protect the personal data of citizens across Europe. To this end, the UK proposes putting in place a data protection agreement by the end of the implementation period at the latest (31 December 2020) to provide reassurance that data flows can continue.

Issues of judicial enforcement

The UK proposes to answer the question of how UK court decisions will be enforced in EU countries post-Brexit (and vice versa) by seeking to join the Lugano Convention - a treaty between EU member states and the members of the European Free Trade Association (Iceland, Switzerland, Norway and Liechtenstein). The White Paper then proposes to “go further” by exploring a new bilateral agreement with the EU on civil judicial cooperation, “covering 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”. 

There would be a commitment that UK courts would “pay due regard to” EU case law “only in those areas where the UK continued to apply a common rulebook” (primarily, trade in goods). It is proposed that the rights stemming from the future relationship would be enforced in the UK by UK courts and in the EU by EU courts, but “when courts in the UK or the EU interpret provisions of national legislation intended to give effect to the agreements, they could take into account the relevant case law of the courts of the other party”.

The White Paper envisages that dialogue between the judiciaries of the UK and EU would be encouraged and facilitated, with the Joint Committee keeping the case law of the UK’s senior courts and the European Court of Justice under review. If significant divergences were found between their interpretation of the agreements, the Committee could be “empowered to act” to preserve a consistent interpretation. 

What now?

Of course, even if the White Paper proposals manage to survive domestic political tensions and schisms, they merely represent the UK’s initial negotiating position. There is no indication yet how the EU will respond, although clearly one can foresee serious concerns about crossing its own negotiating “red lines” by allowing the UK to “cherry pick” aspects of the Single Market.

Nonetheless, the White Paper at least provides some tangible detail as to how the future UK-EU arrangements might ultimately materialise in specific areas – “might” being the operative word.