Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
David Cameron wasted an enormous amount of time, political energy and ultimately his career proving that it was not possible to be a member of the EU and have control over migration.
Having proved that reform of EU free movement rules was impossible, he wisely decided during the referendum to remain silent on migration, focusing instead on the supposed ‘benefits’ of membership of the EU internal (single) market – implausibly holding it up as if it was the very pinnacle of European civilisation. Recognising public concerns over migration pressures, much of the Remain camp tried to sell an implicit trade-off – internal market membership ‘a dubious benefit’ against a free movement ‘cost’.
This is all in line with current EU integrationist doctrine; EU rules are sacred, there is virtue in accepting costs – there are cherries hidden in the EU texts – no cherry picking.
We are now being told by many ex-Remainers (and by some Leavers), who wish to remain in the internal market, and by and large were never very concerned about migration pressures, to forget much of recent political history. We can after all retain internal market membership without free movement from outside the EU. We are being asked to believe that even though the EU was unwilling to compromise on free movement while we were a fully paid-up member, the very same actors will now allow us to break their sacred texts as a departing ex-member. This is yesterday’s game played by yesterday’s people.
Time is short, and there is no time to indulge in another doomed Cameroonian renegotiation of EU free movement. We should end this rogue belief once and for all. So here it is:
Let us begin with a recap. The internal market is the vast body of EU rules, subject to the European Court. These rules harmonise product standards and policies across the EU. While we focus on product standards and rules around the trade in services others see EU free movement, the environment, regional policy and even social policy as integral to the internal market. It is the EU’s largest project and all subject to the ECJ.
“Membership of the internal market” therefore means accepting this legal structure. At present EU states are full voting members. In addition, Lichtenstein, Iceland and Norway automatically accept all of the EU laws but have no say in how they are made (via the EEA agreement). They are therefore something close to being ‘non-voting members’. Cameron, to his credit, saw this as a disastrous arrangement – “fax democracy” he called it where EU rules spew out of a machine in Vaduz, Reykjavik and Oslo without any recourse.
That is the internal market. What we are now asked to believe is that the UK could take the EEA deal and negotiate an exemption to free movement (reprising the issues raised in the Cameroonian negotiations) or potentially use the small print of the EEA agreement to junk this central EU tenet.
This theory rests on two pieces of ‘evidence’.
First, the EU has granted Lichtenstein a semi-permanent exemption from EU free movement rules. Lichtenstein is a small mountain state, and when it joined the EEA in 1995 it negotiated a protocol which has allowed it to restrict EU migration to 72 permits per year. This is reviewed every five years.
Second, the EEA agreement has a ‘safeguard’ (art 112) mechanism within it which would allow a state to resile from a treaty provision if “serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures..”
To take the first argument. The UK is arguably suffering extreme population pressure, but it is probably not acute enough to persuade the EU that the UK deserves a special protocol of the type that previously eluded David Cameron. The UK is not Lichtenstein, we are not a micro-state that the EU can afford to make an exception for. In any case, this is not a permanent opt-out, and if mirrored would require the UK to go through a process every five years – a very uncertain basis for a new relationship.
The second argument is superficially attractive but is highly implausible. It would require the UK to provide evidence and explain why its measures were appropriate in a way that would satisfy an unsympathetic EU. In Cameron’s renegotiation these factors were hard fought over, were time-limited and related to benefits. If the UK announced it was to join the EEA, but would immediately and permanently override its rules, using the safeguard mechanism, it is unlikely that the UK would be allowed to join by the other 30 states who would need to agree. In any case, the EFTA Court has itself adopted much of the EU’s case law on free movement. The UK would end up in a running dispute with the EU, which would leave it expending all its political capital. It is not an option that is designed to give states control over migration policy – and not would it.
Since EEA membership would not allow the UK to control EU migration it would not respect the result of the referendum – or even the will of the Labour Party’s Brexit spokesman Keir Starmer, who has illogically calls for migration to be reduced while seemingly sticking up for the internal market/EEA. Membership of the EEA would leave the UK trapped in the majority of the EU policy areas without a say on its future direction or the ability to benefit from the opportunities of Brexit. It is time that Labour abandoned this idea.
Rather than reprise the arguments of the past, the UK should ditch the language of the EEA. We do not want “membership” of the internal market as we are leaving the EU and becoming “external”. Instead, we want access to the internal market, most favoured nation status or a reciprocal trade deal.
The Prime Minister on Sunday rightly restated that “not going to be a member of the EU any longer…We will be able to have control of our borders, control of our laws.” Membership of the EEA is incompatible with this aim and should be consigned to history.