The dark and dusty corners of the internet aren’t wholly taken over by climate change deniers and crush videos. Constitutional lawyers have one too. And of late it’s been consumed with the Norwegian option.
In case you’ve forgotten—and I rather hope you have—Norway is part of the European Economic Area. It’s a kind of single market hinterland where the “four freedoms” apply—including free movement of persons (and you still make contributions to the budget, and you have less influence over the laws that apply to you) but where you get to strike your own trade deals and you’re outside the Common Agricultural Policy and… but anyway.
And constitutional lawyers have been talking about the Norway option because Professor George Yarrow, Emeritus Fellow of Hertford College, Oxford, published an intriguing paper suggesting that by quitting the EU we could end up like, well, Norway.
And yesterday morning a brave archaeologist of the internet, the BBC’s Diplomatic Editor James Landale, took it from that corner and thrust it, blinking, into the light.
You’ll recall that the mechanism by which we leave the EU is Article 50 of the Lisbon Treaty. But, or so the argument runs, the EEA Agreement has its own mechanism for leaving the EEA: Article 127. And, because it has its own mechanism for exiting, to leave the single market and the EEA we’d also have to trigger Article 127.
The government disagrees, of course. To agree would be to admit it hasn’t properly surveyed the legal terrain and doesn’t entirely know where it’s going. But, for what little it’s worth, I think Yarrow’s analysis on this central point is right.
In one sense all of this is mere formality. If the government can quit the EU it can also quit the EEA. But there is another sense in which it is quite profoundly important. The question whether we want to remain members of the European Economic Area—or the single market—was not put in the referendum. Indeed, a number of prominent “Leave” campaigners insisted that leaving the EU did not mean leaving the single market. And, although it is not an argument I find particularly compelling, many read the Conservative’s 2015 Manifesto as promising continued membership of the single market.