George Trefgarne is CEO of Boscobel & Partners and the author of Norway then Canada, a new strategy for avoiding a Brexit smash.
Jean-Claude Piris, the former head of the European Commission’s legal service, is not a natural hero for British Eurosceptics. So it is ironic that those hardliners who oppose our “Norway then Canada” or “Norway for Now” plans to fall back on membership of the European Economic Area Agreement in order to avoid a Brexit smash seize with delight upon his apparent hostility to the idea as set out on Twitter and in a letter to The Times.
For those new to the EEA, it extends the Single Market to certain non-EU European nations. But it is outside the Common Agricultural Policy, the Common Fisheries Policy and the jurisdiction of the European Court of Justice. It includes potential limits to freedom of movement. The UK signed it in 1992, and it would deliver Brexit in the short term, plus legal rights for the UK (including rights of veto and the ability potentially limit freedom of movement) which the Government has bizarrely not taken up and discarded in its transition arrangements.
Piris is a very distinguished EU lawyer, and his objections merit an answer.
In fairness, he has already qualified his views, after it was pointed out by our Parliamentary cheerleader, Nick Boles, that even Michel Barnier has suggested that this so-called Norway option as a Brexit route. Piris said: “I completely agree with Michel Barnier that EEA is legally possible for UK as a permanent for good solution, but certainly not for now (as an interim solution) and as avoiding the need of a transition period and thus of having first a Withdrawal Agreement.”
Well, nobody is suggesting that there should be no Withdrawal Agreement. What our plan entails is modifying the draft Withdrawal Agreement to replace the proposed transition with the UK’s membership of the EEA. This is possible because the Article 50 Withdrawal letter sent by May didn’t mention the EEA, which has a separate withdrawal mechanism – and we consequently remain a contracting party to it.
Once we leave the EU, the UK’s membership of the EEA can be made operable by joining the other “governance pillar”, the Surveillance Authority and Court of the European Free Trade Association (EFTA). EFTA has proved to be a congenial club for its members.
What “for now” means
There are those on the Conservative backbenches who say only a hard, legally enforceable deadline for leaving the EEA in 2021 (a year before the next scheduled general election) would be acceptable. I don’t agree with them. Such a deadline would create another cliff edge which would be against our interests and, as Erna Solberg suggested this week, it would be “a little bit difficult” for other EEA+EFTA members too.
But we don’t need to ask for any treaty changes or new legal safeguards. The UK can simply rely on the flexibility of the existing, relatively permissive, exit mechanism of giving 12 months notice under Article 127 of the EEA Treaty. Rather than a hard stop, regular reviews should be conducted, giving Parliament the opportunity to decide whether to stay in the EEA or not. If the EEA has not worked for the UK because we are indeed reduced to mere EU-rule-takers, as some understandably fear, we can leave for a Canada style free trade agreement (FTA).
My own opinion is we should give it a go, pause and see how it works. It may be that, with our participation, both the EEA and EFTA will develop positively, to our mutual benefit. The Norwegians can see this opportunity too.
The legal arguments marshalled by Piris are, however, an indication of how some hawks in the EU, determined to extract a Carthaginian peace, might react to an application by the UK to take up our legal rights in the EEA. For that reason, if we do go down this route, we should immediately assemble a team of top international lawyers to gear up for possible international dispute resolution processes. The brilliant Geoffrey Cox could lead it.
I am not a lawyer, but having spoken to some likely candidates for such a team, this is my understanding of what they are likely to say.
1. We remain a contracting party to the EEA
This is the critical point, about which Ministers are evasive. The EEA is a mixed agreement, signed by the EU and member states individually. As Sir Richard Aikens (a former Lord Justice of Appeal), Professor George Yarrow, and Professor Guglielmo Verdirame have argued on the Briefings for Brexit site, we have not sent a withdrawal notice from the EEA, ergo we remain contracting parties.
There is no provision in international law for withdrawing from an international treaty by implication, ie via our Article 50 letter to the EU. Nor are there any provisions in either the EEA itself or the EU treaties which mean withdrawing from one means you are withdrawing from the other.
2. We are supported by the Vienna Convention on the Law of Treaties
The 1969 Vienna Convention on the Law of Treaties sits above the EU’s institutions. Under the VCLT it is theoretically possible for the other contracting parties, including the EU, to kick us out of the EEA. But to do that they would need first to be unanimous, and then prove there had been a “material breach” of the Agreement, which plainly there would not have been.
Article 62 of the VCLT gives the other parties the right to terminate membership if there is a fundamental change of circumstances. But case law demonstrates that the bar for this is set very high and Brexit would not satisfy it. The International Court of Justice (ICJ) has ruled, for instance, that not even the end of communism was enough to negate a treaty between Hungary and Slovakia.
3. The EU has to make it work
Given that we remain contracting parties to the treaty, we can rely on established good faith obligations in international law to get agreement. The maxims include “pacta sunt servanda” – the treaty must be complied with; and “res magis valeat quam pereat”, the thing must be made to work rather than fail. So while our application to join EFTA and minor amendments to the EEA Treaty would obviously require the consent of the other parties, they are bound by their own Treaty commitments and international law to give consent. If they refused, we could appeal to arbitration and ultimately the ICJ.
4. A temporary customs arrangement is feasible
Piris is right that the EFTA states have their own FTAs which we would have to join, and this means we cannot stay in the Customs Union. The EFTA states have their own trade policy. We have only suggested remaining temporarily in the EU Customs arrangements as a workaround, while the systems are put in place and we port across either the EFTA FTAs or the EU’s. This would ultimately be a political decision, but it is one which Barnier has already himself suggested by talking of “Norway Plus”.
In fact, the trade provisions of the EEA are among its many attractions. We could sign our own FTAs, as Norway is doing with China. It is a commercial treaty, between sovereign nations. Just the sort of international agreement with which the UK is most happy.
5. Removing the backstop
Piris says whatever we decide to do “the Irish backstop remains necessary”. Well, we beg to differ. The Norwegian border with Sweden works very well without one and, if the UK remained a member of the single market, it is hard to see why it would be required. On the contrary, the EEA would create a legal duty – and trust – on both sides to make the border work smoothly, and provide the legal and technical agreements to make possible the hi-tech, behind the border solutions advocated by David Davis & company.
Just imagine. If the Prime Minister (whoever it may be), wrote to the EU and its members saying: “Sorry about this, change of plan. We’d like to assert our rights under the EEA and apply to re-join EFTA”, the legal balance of power in the negotiations would be shifted dramatically in our favour. It would, I believe, command support in Parliament and the country.
From the EU’s side, there would no longer be any challenge to their legal order. In the very unlikely event that Barnier did not mean what he said about the Norway option, we could go to international arbitration. Such a course is not without legal risk for the EU, as its institutions have never been tested by a higher court.
We are not pretending the Norway then Canada, or Norway for Now strategy is perfect, or that it will not be accompanied by negotiation and argument. Like any plan it will not doubt have to evolve in execution. But reasonable political and legal opinion suggests it is by far the best alternative path out of both the dark and tangled Chequers woods and the economic quick sand of No Deal. Just why the UK Government will not take it is a mystery.