Davis’s reservations with May’s Brexit plan

Very little about this government is politics as usual.

So none of us should be surprised that the Brexit plan being put to Cabinet tomorrow for approval has been written for Theresa May by her officials, led in this instance by Olly Robbins, while her own Brexit secretary David Davis has been sidelined to the role of influential but frequently ignored adviser and critic.

This is surely irksome to him.

After all, it’s Davis who has to try and sell whatever the Cabinet agrees to the EU’s chief negotiator, Michel Barnier.

What has happened is almost the equivalent of the PM writing a budget, and then asking her Chancellor to deliver it: in the British system, no Chancellor would wear that.

So the big question, on which much hinges - including whether David Davis decides that the moment has come where he would have greater clout (and fun) on the backbenches - is whetherthe PM’s plan has Davis’s wholehearted support.

Well here is the thing. She doesn’t, according to authoritative sources. Or at least not yet.

Importantly his hackles don’t seem especially raised by Downing Street’s complicated new customs proposals - with the zippy new branding “Facilitated Customs Arrangement” - even though this would involve our customs officers collecting both the EU’s tariffs at our borders and any putative new ones of our own.

In essence it would allow the UK to negotiate free trade agreements with the rest of the world as and when the technology is available and proven to seamlessly and frictionlessly track whether importers are telling the truth about the destination of their goods (ie whether the goods are intended for consumption in the UK or EU).

Whether this is a brilliant synthesis of the two existing customs plans rejected by May - NCP and Max Fac - or a ruse to persuade the Brexiters that we are leaving the customs union when in practice that may never turn out to be technologically possible, well you can decide.

But what worries Davis more is that we may be conceding too great a role to the European Court of Justice, and be too willing to be subject to EU law, in trying to secure frictionless access for our goods and foods to the EU’s single market.

As I mentioned a couple of days ago, the PM is proposing permanent alignment of our regulations and laws with the EU’s, as they pertain to manufacturers and food producers.

This would make us a taker of rules from the EU, in goods but not services - which means that when there were were disputes, there would be a locus for the European Court of Justice to adjudicate, though ultimate adjudication would be by a different supranational court, such as the EFTA court.

Davis’s concern is that in this negotiation to maximise our manufacturing and food trade with the EU we would be offering the EU too much too early. In agreeing the supremacy of EU law from the outset, we risk - he thinks - the EU saying it does not want an EFTA style court at the top of the hierarchy but the ECJ itself.

May’s red line would go from fuzzy to erased.

This is not just a theoretical worry. It is what the EU is trying to impose on Switzerland now. And it is already what happens in Ukraine.

What is more, it also gives space to the EU to concentrate on one aspect that is especially toxic to the Brexiters - how much the UK should pay to the EU every year for this market access.

May thinks Davis’s worries are overstated. And this morning Downing Street said this:

“On goods no new rule or regulation will become law without Parliament’s agreement. The new rules will NOT automatically come in.”

But as one cabinet member said to me, all that Downing Street is saying here is that the UK would be adopting the system “of EEA countries to maintain their alignment with EU regs”.

In other words in respected of standards and rules for manufactured goods and agricultural food, the UK would become Norway - or what Rees-Mogg would call a “vassal state”.

It is also not clear that this future role for parliament is so different from what happens now, in that much of the EU’s rules and regs is translated into UK law by parliament.

The difference of course, which will be seized on by Remainers and Brexiters, is that at the moment, as a member of the EU, we can shape and in some cases block EU rules and regulations before they are set in stone.

Post Brexit that will be impossible.

Of course once Brexited, parliament would always have the right NOT to implement any new EU regs and rules in Britain.

But that would be a nuclear option.

Because it would be one step away from opting to tear up the new trading relationship.

And with the stakes so high, parliament would be robbed of any meaningful sovereignty or power.

All of which is to say they expect Friday’s cabinet meeting to be rather more challenging for May than England’s victory over Panama.

In her struggle to persuade Davis - and Johnson, and Leadsom, and Gove, among others - she is facing Colombia or harder.

The True Brexiters in the cabinet will need convincing that her plan does not make a travesty of the UK’s vote to leave the EU.

Her contest with them will go to penalties.

Look away now.