The latest Brexit plan has come too late in the dayby Pawel Swidlicki / October 30, 2018 / Leave a comment
With Halloween marking the five-month point until Brexit day, it is appropriate that the idea of the UK temporarily staying in the single market via the European Economic Area has emerged from the political grave to be touted as a potential means of unblocking the Brexit negotiations.
The concept of Brexit as a series of steps rather than one giant leap is hardly new, having been proposed both before and immediately after the referendum by those Leavers who had the foresight to realise German carmakers would not leap to our rescue, magically obviating the fiendishly complicated challenges of extracting the UK from decades of European integration.
Nonetheless, the shortcomings of the Norway model, offering neither the full array of membership benefits nor the clean break favoured by most Brexiteers, meant there was limited interest in this option even on a transitional basis. Theresa May frequently used it as a rhetorical punching bag to reassure Brexiteers they would get the kind of Brexit they wanted, while the Labour leadership also opposed it, wary of embracing something that looked too much like the status quo.
However, with the negotiations deadlocked over the design of an Irish border backstop that can be acceptable to all sides, the unpalatable prospect of a chaotic, no deal Brexit looms ever larger. Championed by the Conservative MP Nick Boles and endorsed by Brexit pragmatists in both main parties, the “Norway for now” plan aims to break this impasse and create the space necessary to work towards a more sustainable UK-EU relationship.
In theory this plan satisfies a lot of sides’ Brexit objectives. The EU and Dublin would get their backstop—non-time limited EEA membership for the UK alongside a permanent UK-EU customs union—the DUP and would avoid a backstop that risks putting barriers between Northern Ireland and the rest of the UK, while Brexiteers would get a cleaner break at the end of the process as opposed to the deeper integration envisaged in Chequers.
Proponents of this course of action argue that if the UK is to end up in a prolonged transition period, this may as well take place within the EEA’s established institutional framework, rather than extending the limbo “vassal state” arrangement for a few months at a time. This would take the heat out of the negotiations and allow time to work out the practicalities of the Irish border, paving the way for the whole of the UK to enter into a looser, Canada-style free trade deal with the EU. On twitter, this concept is summarised as #NorwaythenCanada.
While the proposal is not entirely without merit, not least from the perspective of giving business greater certainty by eliminating not only the March 2019 cliff-edge but also the subsequent December 2020 cliff-edge, it still faces a considerable number of obstacles. For starters, the legal situation is, to put it mildly, unclear. The most obvious way for the UK to remain in the EEA would be via the European Free Trade Association (The EEA is an agreement between the EU and three of the four EFTA states).
This would however take time and require approval by all EU and EEA/EFTA states, not all of whom would look favourably upon such a scenario; the Norwegians in particular are worried the UK would upset the fine balance within the EEA to the detriment of its own interests. While Norway is reportedly open to permanent EEA/EFTA membership for the UK, Norwegian Prime Minister Erna Solberg has diplomatically suggested that temporary membership would be “a little bit difficult.” Boles has argued the UK would not “throw its weight around” while a temporary member, but the nature of the UK’s current relations with the EU suggests that this is an optimistic assumption.
In order to circumvent this issue, some proponents of this “exit via the EEA” option argue that the UK would retain its EEA membership upon Brexit. In short, they claim that the EEA Agreement, which the UK signed up to in its own right in 1992, has its own exit mechanism (Article 127) and that without formally triggering it, the UK would default to standalone membership after leaving the EU. Some of the proponents of this theory are esteemed and qualified experts in EU and international law, and it is certainly true that this is legally uncharted territory.
However, the strong consensus among experts is that the UK could not unilaterally assert continued EEA membership in those circumstances—the former head of the European Council’s legal service, Jean-Claude Piris, has argued it would be “impossible” for the UK to join by 29th March 2019. Ultimately, given this clash of interpretations it is virtually inevitable the EU view would prevail, not least as it is far from clear how the UK could enforce its claim if the EU treated us a third country under a no deal Brexit. Therefore, the EEA simply cannot be taken for granted as a fall-back option.
Moreover, EEA membership does not allow the UK to dodge the tough trade-offs that have hobbled its Brexit approach, specifically between the imperative to “take back control” while avoiding the need for a hard border in Ireland. Proponents of the “Norway for now” approach appear to be assuming that the right mix of technological and administrative measures can eventually be found which would preserve an open border while also allowing the UK to diverge from EU rules and enter into new FTAs outside of the customs union. It is precisely the lack of confidence in such a solution that has prompted the Ireland and therefore the EU to demand an “all-weather” backstop.
While a non-time limited commitment to remaining in the EEA and maintaining the current customs arrangements does in theory meet those requirements, some in the EU fear this would risk predetermining the negotiations about the future relationship. On the other side, such an open-ended commitment to maintaining many of the obligations of formal membership, including free movement rules, is likely to be unacceptable to the ERG bloc of Brexiteer MPs. They would argue, not entirely without justification, that such an arrangement could prove very hard to ever get out of given the EU would have limited incentives to fundamentally re-visit a settlement giving it most of what it wants.
Given the uncertainty surrounding the entire Brexit process, it is not entirely inconceivable that the EEA could yet offer a way out, especially if it is seen as the best way of avoiding a no deal. This would however require not only winning round the reluctant Norwegians, but also overcoming the EU’s insistence on a backstop that is at least in certain aspects specific to Northern Ireland, rather than UK-wide. On the UK side meanwhile, it is hard to see a number of current cabinet ministers accepting such an arrangement, potentially sinking the government even if May herself were to become a late convert.
On the whole, as painful as it may be, it makes more sense to continue pushing for a breakthrough within the current structure of the talks. While an exit via the EEA could have been a sensible option at the outset of the Brexit process, at this stage it risks becoming a distraction from the fundamental choice facing the UK—a looser UK-EU relationship with a special status for Northern Ireland or a permanently softer form of Brexit for the whole country.