Norway is not BRINO – it is the best option available to Brexiteers
How could a (deliberate?) mistake by a parliamentary drafter unlock the door to an entirely fresh Brexit solution? According to George Tregfarne, the former Economics Editor of the Daily Telegraph and author of the paper “Norway to Canada”, a conspicuous omission in the UK’s Withdrawal Bill could indeed solve the twin goals of easing our passage out of the EU and opening up far wider opportunities once we have left.
If this loophole could be exploited we could be free of the albatross that is Chequers while also averting the chaos that could be caused by No Deal, as well as having greater options made available to us for the future. Sound implausible? I thought so to.
The magic gap in the small print is within the Article 50 letter, sent in March of last year, which gives formal notice to the EU of Britain’s intention to withdraw. Crucially, no mention whatsoever was made of intention to withdraw from the European Economic Area (EEA) under Article 127 of the EEA Treaty. It has been assumed by government ministers and by the Opposition that Exit Day next year will automatically bring our membership of the EEA to an end, but eminent lawyers including Sir Richard Aikens (a former Lord Justice of Appeal) don’t believe this to be the case.
Why does this matter? Well, Britain is currently trying to negotiate a withdrawal agreement from a position of weakness and with no legal grounding. The EU can choose to offer us a deal if it so chooses, but if it finds the terms Britain is offering unacceptable (as it has stated), then it can tell us to take a hike. Indeed, it’s motivated to give us the worst agreement possible. But if Tregfarne and Aikens are right, Britain has existing legal rights under the EEA Treaty independently of our membership of the EU; rights that the EU must respect.
This could be a trump card capable of breaking the deadlock over the negotiations. Being in the EEA but not the EU has for most countries served as a half-way house on the journey towards full membership. Britain on the other hand would be using it as a stepping-stone on the way out. This hasn’t been tried before, but there’s no theoretical reason why it can’t be the case. From the legally secure footing of EEA membership, Britain could apply to join EFTA, which includes Norway, Lichtenstein, Switzerland and Iceland. These countries enjoy full access to the Single Market without being members of the EU or customs union.
Nick Boles, the former Remainer whose campaign “Better Brexit” describes the Prime Minister’s Chequers plan as a humiliation, is an advocate of Britain seeking EFTA membership – often termed the ‘Norway option’. Brexiteer ears will start to prick up at the sound of this: surely it must be a soft Brexiteer plot to park Britain half-in, half-out? But this isn’t quite right. There are a number of advantages, not least of which is flexibility about our final future relationship with the EU: flexibility that our current negotiating strategy risks casting to the wing.
Britain could plug the EEA option straight in – it’s ready to go. This would completely eliminate the need for a 2-year transition period while we remain subject to EU rules, paying into the Budget and with no say in how the money is spent until 2021 – possibly longer. We would need to pay in for certain limited programmes, but Oxford economist George Yarrow (the brains behind Better Brexit) estimates that our contributions would fall from £9bn per annum to just £1.5bn. Immediately, this is an enormous saving. Without having to wait any time at all we would leave the Common Agricultural Policy and hated Common Fisheries Policy on 29th March.
Would it give us control over our own laws, that vital Brexit pledge? We would be subject to the EFTA Court, which (contrary to popular belief) does not simply follow the European Court of Justice. We would be in the same boat as Norway here: we would follow Single Market rules (just 28% of all EU law) for areas that are directly applicable to us, but we would enjoy significant opt-outs and vetoes over new legislation coming from Brussels; Norway effectively rebuffs about 40% of rules coming from the EU.
We would be subject to EFTA rules and the EFTA Court as a sovereign nation that has voluntarily signed up to a commercial treaty, not as a subsidiary state of an international polity with its own Parliament and Qualified Majority Voting, the system by which the Council of the EU could overrule dissenting minority countries when passing new regulations, as frequently happened to us. Rather than being stuck in an indefinite transition period, deprived of all agency on the formation of new rules, we would (like Norway) be able to contribute to the rules-making process.
We would regain significant border control: British passports would be restored with an end to common citizenship. Furthermore, Articles 28(3) and 112 of the EEA Treaty could be invoked – as they have been by Norway and Lichtenstein – vastly to limit European migration. This can take the form of a numbers cap or of administrative barriers to entry, such as having to have a job or home before emigrating. If the government were willing to respond to public demand with a crackdown on unskilled non-EU migration, the package could be sold as one that is overall tough on border control.
Most importantly of all, Britain would be outside the customs union. EFTA countries enjoy dozens of free trade agreements with non-European countries including China, and we would be liberated to pursue our own trade agenda in exactly the same way. Because of this the Norway option is inestimably superior to the Chequers plan, which would bind us forever to the majority of the EU’s customs arrangements, hamstringing us permanently as global traders. EFTA completely short-circuits this customs headache.
And finally, Britain would not have to remain in the EEA forever. Simply triggering Article 127 of the EEA Treaty initiates a simple 12-month exit process. We would be free to do this once we have alternative trade deals in place – ideally something resembling Canada’s Free Trade Agreement with the EU. As EFTA members outside the customs union we would be free to negotiate with the USA, Australia, China, New Zealand, South America and African nations without a time limit.
Once enough of these are in place – and these deals take time – we could transition smoothly out of EFTA and onto the economic high seas as a global trading nation, having saved all the pain and setbacks that would be implied by a No Deal. Brexiteers including Boris Johnson have spent a lot of energy laying out an alternative plan based on the Canada model; the most thought-through example of this is the report by the Institute of Economic Affairs on a free-trade based Brexit (“Plan A+”), and we should not abandon these excellent plans as an ultimate destination point.
The single largest objection to these proposals is simply one of timing – the Canada deal took 9 years to thrash out. Ask yourself this: if there were an as-yet unnamed status that entailed being outside the customs union and hence free to strike trade deals globally without a time limit, that could command the House of Commons, but that also averted short-term disruption that might derail Brexit and end up in its reversal – and it didn’t have “European” in the title – don’t you think Brexiteers would be jumping at it?
To smooth trade in the immediate future, Britain should recognise unilaterally all EU produce and hence completely remove the need for checks on inbound commercial traffic, as well as unconditionally guaranteeing the rights of EU citizens who are already here. Only this week this was recommended by the former Australian Prime Minister, writing in The Spectator, as a sensible move in the event of No Deal – something he insists as an Anglosphere nation and fifth largest economy in the world we should not fear. In the absolutely worst case scenario – that we fail to strike a single non-European deal while we are in EFTA – we could take the time necessary to prepare properly for a future trading relationship with the world based on World Trade Organization terms.
The EEA option is deliverable, saves vast amounts of money, grants significant border control straight away, avoids the snare of being tied to the EU customs union whether in the guise of Chequers or of a transition / backstop, gets us out of the EU, guarantees free trade, and gives us limitless options for the future. It has flexibility and choice built into it in a way that no other proposed solution so far does. Whether your end goal is Norway as a permanent option, as some softer Brexiteers and former Remainers do, or you want a full-blown Canada Brexit (or even a No Deal!), right now the EEA is the practical way forwards for every potentially successful Brexit, whether European or global in aim. We should ditch Chequers and the customs union, exercising our existing rights to outflank the EU negotiators who want to frustrate a successful Brexit. It will be all the more gratifying as it will take them completely by surprise; let’s go for it.