There are many ways we can strike a deal to leave the EU. We might model our future relations on the Comprehensive Economic and Trade Agreement of Canada; we might aim for the a la carte approach of the Swiss; we might have to fall back on no agreement- just rely WTO rules as David Davis threatens. In this post I discuss three further possible scenarios: the “David Davis model” as set out in the past ten days; a model along the lines of “the Norway model” and an alternative I call “the Sovereignty Model”. My concluding point in adverting to six radically different forms of relationship is that there has been no referendum, manifesto pledge or election platform setting out any of these options. It is up to the British people to insist on their democratic right to decide.
The David Davis Model for Brexit
David Davis, the Secretary of State for Exiting the European Union has now set out the bones of how he thinks it should be done. His model seeks the abandonment of free movement of workers; the abandonment of the social and environmental advances of the EU, but the retention and extension of free trade. He is loudly boasting of starting bilateral negotiations with other countries (in breach of existing law). His vision is full of hope for a bespoke deal that breaks the link between free movement of goods services and capital, and free movement of workers: a deal which has never been struck before; which has been resisted for the past two years in response to the Swiss referendum seeking to restrict free movement; and which is not even supported by the Foreign Secretary. His model is very different to that envisaged by the leading Conservative Party campaigners for Brexit such as Michael Gove MP, the new Foreign Secretary Boris Johnson, or Daniel Hannan MEP (who wrote a leading book campaigning for Brexit). It is far more radical a vision than could possibly be considered mandated by a vote to do no more than “leave the EU”.
The referendum was not intended to gift the opportunity of a radical re-writing of our constitution to David Davis. We who do not want a pale imitation- nay an embarassing parody of Britain’s nineteenth-century role in the world- must come together to lay down our demands for the future of this country. The Opportunity in Crisis meetings around the country are an attempt to get people thinking about the shape of the deal and campaigning for a better deal than that on offer from David Davis. https://www.facebook.com/OpportunityInCrisis/?notif_t=page_invite_accepted¬if_id=1468842832712033
The Norway-type Model: Freedom of Movement Retained
As to the Norway model (which is also that enjoyed by Iceland and Lichtenstein), this has been supported in form by Boris Johnson, Daniel Hannan MEP (and prominent Brexiteer), Michael Gove and Nadine Dorries. It is a model which is also supported by the Adam Smith Institute, which notes that we voted to leave the EU, but not to leave the single market and says that its poll of 1,700 people found 54% supported the Norway model.
The key features of the Norway model are that it secures continued integration with the single market, including freedom of movement through the European Economic Area Agreement of 1994. By this agreement, the contracting parties essentially agreed to the EU laws as they stood in 1992 including the four freedoms of movement- workers, capital, goods and services, as well as state aid, competition, consumer protection and parts of environmental law. It does not cover common agricultural policy, fisheries, customs union, common foreign and security policy, justice and home affairs, taxation, or economic and monetary union. There is a necessarily complex, but sophisticated infrastructure and set of rules which govern how the EEA countries which are not within the EU incorporate and keep pace with relevant EU legislation (so as to retain harmony with EU countries in relevant areas), while retaining their sovereignty over areas which are not covered by EEA legislation. There are well-developed arrangements for courts to determine disputes over violations of these arrangements
Three weeks ago just after the referendum, the now Foreign Secretary summed up what he foresaw in terms of Britain’s relationship with the EU along the lines of the Norway model:
EU citizens living in this country will have their rights fully protected, and the same goes for British citizens living in the EU.
British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down. As the German equivalent of the CBI – the BDI – has very sensibly reminded us, there will continue to be free trade, and access to the single market
Boris Johnson just three weeks ago envisaged a continued right of British citizens to continue to work, live, travel, study and buy homes abroad (with associated rights to settle down). He accepts a reciprocal right of EU citizens to remain here (unlike Theresa May, who refuses to rule out deportation of EU nationals). But the continuance of those rights depends on the continuance of free movement.
Benefits of this model include firstly that it is something which other heads of state in Europe (most of whom will have to agree to any article 50 deal) would probably accept. Everyone can imagine how it would work and the complex web of existing legislation and the detailed and structured framework already in existence can be utilised. To try to build equivalent structures and processes from scratch so as to enable the UK to operate bespoke arrangements with the EU would be nigh impossible. Even the formation of a new set of international courts capable of adjudicating on the numerous cases likely to arise about breach of the new treaties (whatever they may be) will be a daunting task. Slotting into existing frameworks for international cooperation therefore has considerable advantages.
Could it achieve compromise within Britain? A Norway-type model might to an extent satiate the “Leavers” for whom the reclaiming of sovereignty was the central demand in that it would ‘free’ Britain from the Common Agricultural and Fisheries policies, enable it to set its own VAT rates and have greater control over other regulations and environmental law. The influence of EU law and the EU justice institutions over the UK would also be diminished. This form of membership should allow for the bi-lateral trade agreements with other countries (Australia etc.) which are being trumpeted at the moment. It is a form of deal which might be enough to keep Scotland within the UK, since it ensures British people are not deprived of their rights to move for work across the EU (albeit other rights will be lost). It might be enough to placate the powerfully supported “remain” movement seeking to undo the referendum result one way or another.
It would have some miserable consequences for progressives and “remainers”, since it would diminish British political influence over the EU, and end our link to some of the progressive components of EU membership. For “leavers”, it would also be short of the controls on EU immigration and freedom from contributions to the EU (the £350m a week would not materialise). Furthermore, what we might gain in sovereignty would have to be set off against significantly diminished British influence over the shaping of the EU and its laws (the EU as it stands is seen very much as a British EU). So although it might not achieve as much sovereignty as some more extreme “Leavers” might hold out for, it keeps open the chance of a second phased withdrawal in, say, a decade, while smoothing the economic shocks and bureaucratic complexity of leaving for the meantime. For remainers, it keeps open the possibility of re-entry, since the model was originally designed as a “waiting room” to allow for integration prior to entry (eg. for Sweden).
On the other hand, leavers and remainers alike might, when confronted with the realities of a Norway-type arrangement, continue of the view that there is no point in compromise: they might think that the Norway model is worse than membership of the EU; and nor is it indepenedent and sovereign enough. What this illustrates, is quite how remarkable is the current government plan not to present the British people with any say in what form of Brexit we adopt.
The Sovereignty Model
Writing three days after the referendum, Boris Johnson said this:
It is said that those who voted Leave were mainly driven by anxieties about immigration. I do not believe that is so. After meeting thousands of people in the course of the campaign, I can tell you that the number one issue was control – a sense that British democracy was being undermined by the EU system, and that we should restore to the people that vital power: to kick out their rulers at elections, and to choose new ones.
The Foreign Secretary makes an important and powerful point that chimes with the tenor of the leave campaign over many years (not just the final week of the campaign). The primary issue and justification for leaving is not immigration, it is sovereignty. It is vital that the deal struck now is one which lives out the full meaning of that creed. That means it is for the British people, and its parliament to decide whether we wish to abrogate our right to freedom of movement. It is not for Mr Davis, or more honestly, his faceless bureaucrats and civil servants, to sit in some back-room in Brussels doing deals that deprive British Citizens of rights as important as that to work and live within any country in the European Union. It is not for faceless hired bureaucrats and negotiators to surrender, for example, the integrated system of environmental controls with which we have cooperated and almost unanimously agreed for the past forty years. If these rights and systems are to be abandoned, then the Brexit deal is not the mechanism. The deal must safeguard continued operation of the extant system of controls unless and until our Parliament authorises any different form of legal order.
The Sovereignty Model of Brexit therefore envisages a deal which following exit from the EU changes little. We do not throw out any more of the bathwater than is mandated by the simple instruction of the people to leave the EU. Of course we have to surrender membership of the EU, and with it any place in its governance or in the election of its Parliament. But apart from that we maintain – for the meantime- the Supremacy of the European Court of Justice and of European Law as it will continue to apply, as well as the principles of Direct and Indirect Effect. We empower parliament to abolish these principles, but that willonly occur as and when Parliament is given the opportunity to work out how we transition to a world in which (inevitably) European law must continue in some form, while allowing for the UK to diverge on the terms and interpretation of that law. It may be that the functions of the European Court could in time be transferred to the EFTA court if that sort of change of form is considered necessary to satisfy “sovereignty”, but there is no getting round the need for an international judicial apparatus. This will be a slow process, but any other course will not be faster, it will simply be more rife with ineptitude, complexity and legal deadlock.
I have illustrated above two perfectly feasible models for exiting the EU, as well as that sketched out by the Brexit Minister. The underlying point is that none of the vast array of possibilities have been worked out by anybody- least of all the Brexit Minister. It is irresponsible and wreck-happy to be proposing to commence article 50 discussions on a platform as thin and bereft of credibility or accountability as that of Mr Davis. Our country is facing a serious threat from ideologues who are desperately hastening towards trying to secure a Brexit fait accompli. There is not even time for academic or polemic books to be written on what kind of exit is envisaged before negotiations start. There is barely time to recruit a Department of State responsible for the negotiations. Our first priority (by which I mean those of us who care about reality) has to be to campaign to slow all this down, for the public, parliament, think-tanks, the press, the legal establishment, the civil service to be given a chance to work out a sensible way of achieiving Brexit and for all of this to then be debated and decided on in a democratic fashion.