EU Referendum


Brexit: a Damascene conversion


29/11/2016





So opposed to the "Norway option" was Peter Wilding, director of British Influence, that in February of this year – well before the referendum - he invited the Norwegian Europe minister, Vidar Helgesen, over to the UK to tell us how awful it was.

We got the usual low-grade BS from Helgesen, with him telling us that British Eurosceptics often say the Norwegian experience is evidence of how a country outside the EU, but enjoying the benefits of the single market through membership of the EEA, can prosper without having to commit itself to full membership.

Helgesen, on the other hand, said that this arrangement often created frustrations and difficulties, which meant Norwegian ministers and officials spent a lot of time – sometimes without success – trying to find out what was going on in EU meetings that would affect their country directly.

"We [Norway] are fully integrated into the EU single market as members of the EEA, but what we don't have is the right to vote on those regulations that are incorporated into our law when they are made by the council of ministers", he added.

On occasion, Brussels has sprung surprises that the Norwegians could not predict. The same kind of frustrations could well face the UK. "You would not have all those Brits staffing the commission where the decisions are made", said Helgesen. "Britain being on the outside would obviously not have that amount of people on the inside. You would find it more difficult, as a result, to affect the regulations".

On the back of this, Wilding roundly declared: "Eurosceptics who peddle the myth that Norway is the best [model] for a non-EU Britain are deceiving the British public. They say leaving leads to more democracy and security. This is nonsense".

In full spate, Wilding then said: "We now have the Norwegian Europe minister himself telling us to get a grip, get real and get involved in shaping Europe. Little England cannot be an option".

But now, a mere eight months later, this same Mr Wilding is so convinced of the merits of belonging to the EEA that he is preparing a legal challenge to the government to decide whether it can withdraw from it.

Wilding's rabidly "remainer" campaigning platform has now morphed into a "pro-single market think-tank" and has hired lawyers to argue that leaving the EU does not automatically take Britain out of the European Economic Area (EAA), in which the single market operates.

They will claim that the decision to take the additional step must be decided by parliament separately from any vote to trigger Article 50, the mechanism for exiting the EU.

British Influence has written to David Davis informing him it is seeking a judicial review of that position. It warns that the government may be in breach of the law if it seeks to take Britain out of the EEA along with the EU without clear legal justification.

"We believe the government has not understood how we leave the EEA, and has not understood that we do not need to leave the EEA in order to respect the red lines the 23 June referendum established", Wilding says. "This is not about stopping, thwarting or delaying Brexit, but getting a smarter Brexit that delivers for the UK and doesn’t destabilise the continent of Europe".

Interestingly, British Influence invokes Liechtenstein, saying that it has used some provisions of its EEA membership to limit free movement of people. Its lawyers will argue that Britain could also use these provisions to satisfy the demands of those who voted for Brexit to limit immigration.

The argument hinges on whether Britain joined the EEA as a member of the EU or in its own right. Lawyers are focusing on the case of Croatia, which acceded to the EEA nine months after joining the EU, to prove that the two entities are separate.

They will argue that to leave the EEA, Britain must separately trigger Article 127 of the EEA agreement, in addition to Article 50. Article 127, which Wilding calls "a game changer", requires members to give 12 months' notification to leave without reference to Article 50, while Article 128 says that countries acceding to the EU "may" apply to join the EEA but are not compelled to.

Actually, this argument is very thin indeed, making this a false move by Wilding. We dealt with it at length in October, arguing that the EEA Agreement was quite evidently a treaty between EU Member States and Efta States. To be a party to the Agreement, the UK must either be a member of the EU or Efta.

Failing this, the other members can invoke Article 60 of the Vienna Convention on the Law of Treaties, and eject the UK. Article 60(2) entitles, in the event of a material breach of a multilateral treaty by one of the parties, entitles the other parties by unanimous agreement to terminate the treaty in the relations between themselves and the defaulting State.

In practice, it would be very hard for any state to participate in the EEA unless it was either a member of the EU or Efta, as the management of the Agreement is conducted via the institutional frameworks of both organisations. That would allow the parties to terminate the Agreement on the grounds of "the impossibility of performing a treaty" (Article 61), or the parties may prefer Article 62, citing "a fundamental change of circumstances".

For once, though, we're not on our own on this. The media's all-purpose "leading authority on European law has also poured cold water on Wilding's thesis. This is Jean-Claude Piris, a former head of the European council's legal service.

"The UK's withdrawal from EU will mean an automatic cessation of its membership of EEA as an EEA-EU member", he says. "In order to become an EEA member you have either to be an EU member or an Efta member". Thus, the UK would not be able to remain in the EEA unless, on withdrawal from the EU, it rejoined Efta.

The crucial point then, which would be much more interesting for Wilding to explore, is whether the UK participation in the EEA Agreement would then automatically lapse, requiring the government to re-apply, or whether we could claim continuity.

In the latter event, this could be very helpful as the UK could then unilaterally invoke Article 112 (safeguard measures) to impose restrictions on the free movement of persons – without requiring the assent of any other party.

Needless to say, a Government spokesman dismissed the challenge, saying: "As the UK is party to the EEA Agreement only in its capacity as an EU Member State, once we leave the European Union we will automatically cease to be a member of the EEA".

Nevertheless, continued EEA participation is possibly the best option for a trouble-free extraction from the EU, which makes it all the more perverse that the lunatic fringe is objecting to it, and absolutely bizarre that those who most strenuously opposed it are now supporting the idea.

Welcome to the topsy-turvy world of Brexit were, as Booker ventured over the weekend, the most serious barriers to a smooth exit from the EU comes from the Tory eurosceptics – as well as their fellow travellers in Ukip.