On the now defunct Brexit Door blog, I spent the best part of a year developing the arguments for an EEA/EFTA based Brexit solution – what was basically to all intents the first stage of the Flexcit plan by Dr Richard North. There were several reasons for this. Firstly, it was the only game in town for anyone who wanted to see any real research led argument. Secondly, its motivations were the ones I shared, in that it was not motivated by either xenophobia or any intent to pull up the drawbridge between ourselves and the continent.It was based on mainly classical Liberal trading arguments as opposed to protectionism.
Strongest of all the considerations, was that I thought that this would be the single plan to leave the EU that would be able to gain enough support in the campaign to allow those with fears over the impacts of exit some security, while also gaining us the opportunity to create a fully independent Britain over a period of time. We could win, and take a majority of the ‘middle ‘ with us.
In the final weeks of the campaign, we were all much heartened by polling commissioned by the Adam Smith Institute and published in the Telegraph which backed this theory very strongly. However, there is a fly in the ointment.
Brexit in the Courts.
In the last few months we have seen several court actions, and at the same time we have gained an extended understanding of the manner in which the EU treaty works in practice through engagement with those who are or have been involved in the legal process on the EU side (such as Andrew Duff). This means for me, that the shape of the negotiation is somewhat different to that which we had initially believed before the vote.
Much of this stems from the Jolyon Maugham case, which is currently being brought through the Irish courts. He is seeking to show that the article 50 notification is revocable unilaterally by the leaving state, so long as that revocation is in good faith ( and not just a delaying tactic). Of course, this changes the dynamic. Were that case to succeed then there is likely to be a point at which the choice to remain in the EU will appear again, before we have left it.This is a significant factor, because before the referendum we took the opinion from many sources that the choice at the end of the negotiation process would be between any deal we had reached against leaving without one. This was a key component of Flexcit, to avoid that pressure based on the two year guillotine on article 50.
Maugham’s case is, from what I have read and from answers I have received from various sources, correct. Article 50 is revocable, unilaterally, as the Lisbon treaty was written to be read not just alone, but in conjunction with the Vienna Convention on the Law of Treaties (the accepted international authority on treaty law). It is Vienna which provides the framework for notification, and the rules surrounding this notification.
Of course, if this is correct, then Gina Miller’s case should by the same token, fall at the supreme court, because there is no implied repeal of the 1972 act in the simple placing of the notification to leave. Parliament will still have to be consulted on the treaty that will replace our EU membership (and there would have to be some agreements, even if not the depth and scale of an FTA, that would have to go through the process of Parliamentary approval under the 2010 Constitutional Reform and Governance act). At that point, the choice to Remain would still on the table, legally speaking.
Political Impacts of Continuity Remain
It is impossible to argue that the coverage of the court cases and the resignation of Sir Ivan Rogers has not had a political impact. The results of the cases are not yet in, but when they are, and if they return the results I am led to believe that they will, this will almost certainly create a political shift again. Opinions at this point, especially amongst Leavers, seem to be hardening.
Partly this is a change in perception – simply the fact that they won a vote that most expected to lose (including myself if I’m completely honest). This has emboldened views that we must go for the swift and sharp option. But also it is a function of the continuity remain campaign.
Rather than press for a solution that the middle could coalesce around, many Remainers have looked for strategies to derail Brexit. In this, Tim Farron is a prominent voice – their hope is that they can force a second referendum on the deal, while emboldened by Maugham’s case that to reject the negotiated deal now means that we remain, rather than leave to some ‘Hard Brexit’ WTO status. Project fear can be replayed again, and the incentive for the EU to ‘play nice’ would appear reduced.
At the same time, those who are now coming around to the idea of an EEA/EFTA route out, are seeking it as a much more long term arrangement than most leavers would be willing to be subject to. Ian Dunt for example, has proposed to hold out an olive branch to Leavers in the form of co-operation around the EEA/EFTA route. But in his article he tries to convince Remainers that this is the best way to shadow the progress of the EU in legal harmonisation, the aim being that we should have the shortest gap to bridge to rejoin it at a later date.
This makes it very difficult for Leavers who proposed the Flexcit route – because in that plan was the intention to lift power through enhancement of Global governance (via WTO TBT agreement), to the next higher level – UNECE. Clearly, those newly in favour of EEA/EFTA are not looking to that aim at all.
The Civil Service, Parliament and Norway
One consideration that is coming to the fore is that none of the personalities involved in the campaign have really changed. Parliament is still there, as is the Lords. The MPs elected in 2015 were presumed by their own statements to be about 500/150 for remain.
The Civil Service, always supposed to be a neutral tool of the state and therefore the people, is arguably nothing of the sort. Peter Oborne has written extensively and authoritatively on this subject. It has never been a secret that the distinction between the EU and the British Civil Service was a very blurred line, and that the Civil Service (at its highest levels) were not in favour of a referendum. Oborne also writes about the politicisation of the Civil Service, something that has led to suspicion about how the system works, and makes it very difficult for the man on the street to feel confident in it.
And what of our major Parties? The Conservative Party, which should always have naturally been against Supranational government, has always been its biggest cheerleader. Labour after 1987 joined in. If both parties are showing a desire to support the will of the people in effecting Brexit, it is almost certainly regarded by many as no more than a position of convenience. These parties have not been somehow forever changed by the result of the referendum. Arguably with some justification, people fear that eventually they might both return to their old positions, and simply never really get beyond the initial first stage of Brexit – a kind of half out position where we play along tacitly with the ECJ and other institutions.
Norway, our proposed EFTA partner, also suffers from a similar malaise. Its politicians are largely out of step with its electorate when it comes to matters regarding the EU. They would join tomorrow, if they thought they could get it past the people. The referendum has not changed this, and the comments of the Norwegian PM this week about Britain’s lack of negotiating ability have simply not helped matters (even if they had a ring of truth to them). It has made our EFTA partner appear hostile to many leavers, even if that was not the intention.
All of the above, makes it more difficult for Leavers to coalesce around a deal which leaves us close to the EU, such as the EEA. Simply, the trust in our own political system is not there.
The hardening lines I see in the public discourse over Brexit, the conversations with friends and the reports in the media draw me to the belief that the EEA solution is less and less likely to be our route our of the EU, whatever its merits.
Those who have rallied to its cause since the referendum have been largely those who wrote it off as ‘Pay with no say’ or ‘Fax Democracy’. Their volte face inspires little confidence in confirmed Leavers, and their fellow travellers are often holders of some quite extreme positions on Brexit which further salts their ground. While they openly support the idea of ‘rejoining’ at a later date, they surely stand little hope of wider support. Of course, that doesn’t mean that Rejoining is a realistic prospect, even via a prolonged EEA transition. As Dr Richard North points out, it’s a big political leap to reverse the decision after we are actually out. EFTA membership makes it no more easy to rejoin the EU, for it is a political decision, regardless of the logistics. But the floating of this idea hardly promotes a common cause.
The government, while still being that of a Tory party, must already be looking to their next election. The argument for immigration control is playing large in areas where the Tories need to gain ground, but not so much in the areas where they are fairly safe. Labour’s pledge to keep current Freedom of Movement rules hands them an historic opportunity to break Labour in the North. Article 112 emergency brake mechanisms are simply not being discussed in the public arena, because the same people are in charge who effectively rubbished this option in the Referendum campaign, on both sides of the house. Only Cameron and Osborne have been removed. But Fox, Johnson and Davis have been moved in – and we know their position on EEA from the campaign. Only Davis has appeared to soften slightly, in terms of payments to the EU – though any reader of Flexcit will be able to tell you was always going to be part of the settlement and ongoing co-operation. There’s no such thing as a free lunch.
All this leads me to believe that other options will have to be explored first. An FTA will certainly not be part of the Article 50 process in the way that transition to EEA could be – that is a separate issue under the EU Treaty. The EU has made noises to the effect that these issues will not be taken in parallel. So I think it is becoming clearer what the government’s position will be – and it will not be that which I campaigned for.
However, there is still a wide scope for agreement with the EU and continuing constructive co-operation. Brexit, on any terms we negotiate, will still be better than Remaining in an EU which is contrary to our nature, culture and long term interests. There is no ‘WTO’ option as was painted by some in the campaign – the dichotomy between ‘Hard’ and ‘Soft’ Brexit is a false one. There are in fact many shades of grey. Both sides must be seen to get something they want in the upcoming negotiations for the consumption of the public. But that doesn’t mean either side has to lose for the other to gain, and I am still confident that the outcome will be Liberal, good for Britain, and potentially good for the EU.