Tuesday, 5 July 2022 – 04:23

Cabinet agrees a uniform approach to Brexit

The cabinet has seemingly reached an agreement on the UK’s future relationship with the EU after Brexit. This comes after a meeting of cabinet colleagues at the Prime Minister’s country residence Chequers. The purpose was to clearly outline the UK’s approach to negotiations and unify the ever-waring cabinet. 

The main outcomes of this meeting are:

  1. The UK will maintain a ‘common rulebook’ for all goods with the EU. This include agricultural products and all manufactured goods. A treaty will ensure that the UK is committed to ‘continued harmonisation’ with existing EU to smooth any transition, and importantly, avoid any friction at the UK-EU border. The UK Parliament will oversee this, and have the option to diverge from EU rules, with a recognition of the consequences. 
  2. A joint jurisdiction framework will be established to better interpret UK-EU agreements. This will be jointly done in the UK but UK courts, and in the EU by EU courts. Decisions by UK courts would involve ‘due regard’ paid to EU case law in areas where the UK continued to apply a common rulebook for goods. In short, EU law could still apply in cases where the UK does not choose to diverge with EU trade regulations. 
  3. The borders between the UK and the EU will be treated as a ‘combined customs territory’. The UK will apply domestic tariffs and trade policies for good intended for the UK markets. However, it will apply EU tariffs and trade policies for those goods travelling through the UK destined for EU markets. According to the Government, this outcome avoids a hard Irish border.
  4. The Government has used these talks to underline their commitment to a ‘mobility framework’ which will be used to end Freedom of Movement. 

The aims of these talks are three-fold. Primarily, they aim to give the UK an independent trade policy, with the option to set its own tariffs and reach separate trade deals. Secondly, they aim to end the jurisdiction of the European Court of Justice in UK affairs. Finally, through this, the UK can end the current rate of annual payments, replacing them with specific and appropriate contributions for joint actions in specific areas. 

However, maintaining a ‘common rulebook’ for UK goods with the EU arguably allows UK trade policy to match EU, and therefore current trade policy. Therefore, whilst these talks aim to give independence to UK trade policy, this independence is not guaranteed, but is a choice Government, Parliament, and ultimately businesses may make. And, given the current business warnings, off major companies like Airbus and BMW, it can be inferred that a common approach, which ties the UK to common regulations over trade will be favoured over independence. 

Secondly, if a ‘common rulebook’ approach is taken, then joint-jurisdiction, in which EU case law will apply, will be standard. This therefore will not end the role of the ECJ over UK affairs.

However, these talks give flexibility, but no certainty. 

The Government can choose to seek an independent trade deal, and in doing so can reject the jurisdiction of the ECJ and reduce yearly EU contributions. In this case, the talks have produced a future trading relationship which matches a Hard Brexit. 

However, ‘common harmonisation’ and the option to maintain a ‘common rulebook’ would imply that the Government has a rebranded ‘soft Brexit’, in which trade regulations would match those we currently enjoy.

As such, these talks, and their specificities, are malleable. If the Government wants to continue following EU law, following EJC rules, and paying the EU contribution, it can. If the Government wants to pursue a independent trade deal, divergent from EU case law with lower contributions, equally it can. 

Therefore, the question should not be what option the Government chooses, but what Government chooses the option. 

 

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