Brexit: EEA myths

15/05/2018

This surely has to represent the nadir of legacy media reporting when an former editor of The Times can blithely make such a huge mistake in writing for a national newspaper. But it represents not only alarming ignorance on the part of the man but also the system - which supposedly includes fact-checking sub-editors - which allowed the error through unchecked.

Had Jenkin wanted to check, he could always have read the paper he used to edit, which has an article about the EEA. It manages to get one thing right, in declaring that Efta members (of the EEA) are not in the customs union.

That said, The Times piece's arrogance represents much that is objectionable about the legacy media as its title asserts: "Brexit: everything you need to know about the European Economic Area" - a cover for trotting out the usual quota of errors and misunderstandings, telling us very little of what we actually need to know.

For instance, the paper asserts that EEA membership would enable the UK to continue to participate in the single market and "this would allow, for example, a chocolate manufacturer in Birmingham to continue selling its goods across Europe with no new checks on its produce".

It is interesting that – doubtless unwittingly – the paper has picked on a product which may be based on a food of animal origin (milk) and is certainly of plant origin. Imported from the UK with the status of a third country, this would be problematical, requiring checks to be made either a Border Inspection Post (BIP) or a Designated Point of Entry.

As it stands, Norway (and to an extent Iceland) is exempt from these checks, but this exemption does not come automatically by virtue of EEA participation. It requires additional sectoral agreements incorporated in Annex 1 of the EEA Agreement. Liechtenstein does not share the exemptions and it has adopted the Swiss legislative code.

Thus, for The Times assertion to be true, the UK would need to trawl through the hundreds of provisions in Annex I, making amendments as necessary, to ensure that we fully participated in the single market for animals, products (including foods) of animal origin, plants and products (including foods and things such as timber) of plant origin.

This underscores something that I doubt any single paper has picked up – and has passed by most of the EEA enthusiasts – that the EEA Agreement is not a single homogenous treaty but a series of detailed bespoke agreements tailored to the three Efta members.

This has advantages and disadvantages. The obvious advantage is that (potentially) we end up with a bespoke agreement, tailored specifically to UK requirements. It will not be the "Norway option" that we adopt but the "UK option", a subset of the Efta/EEA option.

Furthermore, unlike the EU treaties, the EEA Agreement is extraordinarily flexible and can be amended with ease. This is because of the remarkable structure of the Agreement which takes on board EU law by amending the treaty and incorporating it into the treaty text via the annexes. As such, the treaty is amended as many as ten times a year, the changes agreed respectively by the EEAS on behalf of the EU and the individual Efta/EEA states.

Thus, there is no question (or need for) a "once and for all" agreement, as will be the case with the Withdrawal Agreement under the Article 50 provisions being discussed in Brussels. We can keep going back for as long as the EEA Agreement is in force, adding specifics to it via the protocols and the annexes.

As to the downside, this means that the Efta/EEA Agreement is no quick fix. Apart from the need to rejoin Efta – which is by no means certain and will take some time – we then will have to do a line-by-line analysis of the EEA Annexes, making sectoral and country-specific adjustments as necessary.

We will also need to negotiate country-specific protocols, most definitely on mutual agreement of conformity assessment, on customs cooperation (which would include mutual recognition of Authorised Economic Operators), on rules of origin and on agriculture and fisheries. We might also tuck into Protocol 15, adding our name alongside Liechtenstein, to extend control of freedom of movement to the UK on its own negotiated terms. That would remove the need to invoke Art 112.

This, though, is not the end of it. As with the decision in the EU-US Air Transport Agreement, which allowed Norway and Iceland to join EU-US open skies deal, we see provisions for the EU to fold Efta/EEA countries into international agreements, without having to negotiate separate agreements.

Such provision have their own upside. Much of what is currently being negotiated for inclusion in the Withdrawal Agreement and would also have to be the subject of further negotiations, can be managed through the far less demanding process of the EEA Agreement, using the existing institutions of the EEA Council and the Joint Committee.

Such subtleties, however, are way beyond the scope of a legacy media which has yet to understand the difference between the customs union and customs cooperation.

As far as The Times and its "everything you need to know about the European Economic Area". All it can cope with is the Janet & John version of EEA, telling us that, "if the UK were to remain in the EEA it would have no power to control EU migration, a key reason why many people voted to leave in the first place".

In addition, it says, "while countries such as Norway are obliged to follow new EU laws that relate to the single market they have no formal say in setting those rules. This, critics argue, would make the UK a rule-taker and warn that in the end it would only be a matter of time before the EU proposed a rule that was unacceptable to UK national interests".

What is entertaining about The Times, though, is that it opens its piece with the claim that, "Before June 2016 even European political afficiados (sic) only had a hazy idea about what the European Economic Area was but Brexit has changed that". Bearing in mind that Flexcit was first published in 2014, and we are nothing if not political aficionados, this is the classic arrogance of the beast, where nothing exists until it has discovered it.

Between them all, though, the legacy media seems to have learned nothing about the EEA, remaining locked into the same tired clichés that they have been trotting out for years. To its overweening ignorance, however, the Financial Times adds irony as it calls on its readers to "make informed decisions" and "become an FT subscriber".

It then cheerfully tells us that "EEA membership would mean the UK retaining full access to the EU's single market but making financial contributions and accepting most EU laws. Free movement would also continue to apply". Not only has this paper learned nothing, it seems incapable of learning anything.

Pete has had a go on Twitter - a vain attempt to educate the ignorati. But we are largely dealing with a community which is convinced it already knows everything and needs to learn nothing. It is beyond redemption.

That's the worry of it all. We have an option here which solves most of the immediate problems of Brexit, and would set us fair for a longer-term solution. But it is a solution about which most the media know terrifyingly little, and most of what they think they know is wrong.

It is also a solution where even most of its advocates don't fully understand it, and where some of its supporters have ulterior motives, wrongly believing that EEA participation keeps us closer to the EU and would make it easier for us to rejoin at some later date.

That encapsulates another pernicious myth – that the EEA is the "ante-room" for aspiring EU members. Like so many, this myth persists even when the reality is the exact opposite. The EEA was devised for those European counties which wanted strong trading relations with the EC (as it was then), but did not want to buy into the full political integration package.

From the original proposal of a European Economic Space, it emerged as the EEA, complete with safeguard measures to compensate for the lack of voting rights, and serves to this day as an alternative to EU membership – offering precisely what so many Eurosceptics sought.

If we leave the EEA, that means deserting the Single Market. And as, I point out in Monograph 15 we have nothing to gain from leaving it. We have even less to gain from leaving the EEA.

And yet, there is still room for optimism. Says Peter Hitchens, s tiny gleam of light in the endless, swirling, flatulent fog of the European debate: The possibility that Britain may remain in the European Economic Area, so getting rid of three quarters of the EU's laws, while not madly damaging its trade with EU countries, is still just about alive.

One day, he concludes, people will realise what a good idea this is.