UK: The Brexit White Paper – A Scottish Perspective

Although perhaps overshadowed by the US President's visit to Britain, the UK Government last week published its long-awaited White Paper on "The Future Relationship between the United Kingdom and the European Union", which the foreword from the new Secretary of State for Exiting the EU, Dominic Raab, describes as "a vision that respects the result of the referendum and delivers a principled and practical Brexit." The paper is intended as a blueprint for further negotiations with Brussels and runs to more than 100 pages. While any final deal will almost certainly be different to the content of the White Paper, it at least identifies the minimum degree of continued harmonisation with the EU that could be expected from any deal. In this post we outline some of the key points and present a short analysis from a specifically Scottish angle.

Free Trade Area for Goods, and Scottish Agriculture

At the core of the paper is the proposal for a free trade area for goods between the UK and the EU. The paper proposes that the UK would implement and commit by treaty to continuously harmonise the "common rulebook" on goods (meaning the EU "rulebook" covering matters such as product standards) in order to ensure frictionless borders, in particular between Northern Ireland and the Republic of Ireland and to protect UK-EU trade relations.

The proposal makes it clear that "goods" include agricultural, food and fishing products. Agricultural matters are largely decided at EU level at present, but are otherwise devolved to the Scottish Parliament (as well as to Wales and Northern Ireland, and subject to any 'freezing' orders that might be made under the EU Withdrawal Act to preserve the status quo ante following Brexit). The Scottish Government has not yet commented on this point; however, its consistent preference has been to maintain a close alignment with EU standards in all areas, and so it may be expected to support the principle of what's proposed in this area. The White Paper promises close intra-UK cooperation in these matters to "ensure future arrangements within the UK work for the whole of the UK", but it does not specify what exactly this cooperation could look like and how much say the devolved institutions would have.

Scottish Fishing Industry

The paper confirms the intention of the UK Government to end the UK's involvement in the Common Agricultural Policy and the Common Fisheries Policy. It emphasises the importance of the fishing industry and wider seafood sector to coastal communities across England, Scotland, Wales and Northern Ireland. The UK proposes to agree a mechanism for annual negotiations on access to waters and fishing opportunities, and to promote sustainable fisheries. Again, the paper records the UK Government's stated intention to work closely with the devolved administrations to achieve this. During international fisheries negotiations, the UK delegation would continue to include representatives from each devolved government.

Environmental matters

The post-Brexit future of environmental policy in Scotland is another area affected by the ongoing disagreement between the Scottish and UK Governments about the appropriate allocation of responsibilities within the UK. The White Paper emphasises the UK's commitment to maintain current high environmental standards "through a non-regression requirement", however, what it does not say is whether these standards will match future EU standards. Further, the White Paper refers to the recently published "25 Year Environment Plan for England" and the UK Government's commitment "to consult on a new, independent, statutory body to hold the government to account on environmental protections", as well as the UK's international obligations under numerous multilateral environmental agreements. Although the paper acknowledges that "Scotland, Wales and Northern Ireland have made clear that they have equally high ambitions", there is no mention of exactly how UK-wide environmental policy standards will be maintained and what intra-UK cooperation would look like. However, the paper does propose (in the section on "open and fair competition") that the UK and EU should agree to a "non-regression of environmental standards", as well as a reciprocal commitment to ongoing environmental co-operation. This clearly suggests that, however environmental policy is to be determined within the UK, the proposed treaty with the EU would prohibit any part of the UK from reducing environmental protection standards below their current level.

Civil judicial and criminal justice cooperation, and the Scottish legal system

The paper outlines the UK Government's intention to "explore" a comprehensive bilateral agreement with the EU on matters of civil judicial cooperation as well as on criminal justice cooperation. This "would also reflect the long history of cooperation in this field based on mutual trust in each other's legal systems". The paper makes clear that this "mutual trust in each other's legal system" has not only a UK-EU dimension: the UK Government intends to work closely with the devolved administrations to ensure that any future arrangements with the EU take into account "the separate and distinct legal systems in Scotland and Northern Ireland". With regards to law enforcement and security matters, the White Paper notes that any new arrangements must also recognise the independent role of the Lord Advocate, as head of the criminal prosecutions system and the system of investigation of deaths in Scotland.

Future dialogue between the UK, the EU – and Scotland?

The White Paper proposes a new political body – a "Governing Body" – involving the UK Prime Minister and the heads of state and governments of EU Member States and the presidents of the EU institutions. Its purpose would be to give leaders and ministers a forum in which to shape and direct the future relationship between the UK and the EU. The White Paper indicates that there would be no direct involvement of the devolved administrations in this forum, stating instead that "the UK Government will represent the interests of all parts of the UK in this forum, ensuring that the interests of the devolved administrations are taken into account".

Outlook

The UK Government has pledged to "deliver for the whole UK family, including the devolved administrations, the Governments of the Overseas Territories and the Crown Dependencies" (see here for our recent piece on Gibraltar's position). Accordingly, the White paper on "The Future Relationship between the United Kingdom and the European Union" repeatedly confirms the UK Government's intention to "work closely" with the devolved Governments and continue to engage with the Governments of the Crown Dependencies and Overseas Territories.

The White Paper is focused principally on the UK's proposals for its negotiations with the EU rather than on the future implementation of any Brexit deal within the UK. The latter subject will be influenced to some degree by the outcome of the UK Government's challenge to the Scottish Parliament's own Brexit Bill which is to be heard in the Supreme Court on 24 and 25 July. More on that later...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.