Richard North, 30/09/2016  

Since this blog has raised the issue of invoking Article 112 of the EEA Agreement as a means of brokering a long-term resolution to the free movement of persons, the chatterati have been only too keen to knock down the idea – rarely bothering to understand the issues involved.

The way this has been done, however, has provided graphic illustrations of how the Brexit debate has been distorted and perverted. First we had Monnet professor Dougan dismissing the solution as an "armchair lawyers' argument", and then Peter Lilley and Newsnight completely misrepresenting the arguments.

Mostly, of course, the critics work behind the scenes, never coming out into the open, but simply dripping the poison into their own circles, with not even a pretence at a fair and open debate.

A further example of this dynamic came to us recently, after Anthony Scholefield's Futurus think tank briefly mentioned the Liechtenstein situation, drawing attention to the and our Monograph series.

Anthony was thus rewarded with an e-mail from David Green, the director of the Civitas think tank, stating: "I asked one of my researchers to look into the option of using article 112. He thinks it is not a realistic option and I thought you might have some counter-arguments".

Attached to the e-mail was a this three-page analysis, on which Anthony was supposed to comment, even though on his website he only refers to the issue in passing, making it clear that the work is mine. Yet Green made no attempt to contact me – and nor does his "researcher", Christian Stensrud.

Bizarrely, Stensrud uses as his one and only reference to my work, this link, which doesn't even deal with the issues in detail and in any event has been superseded, bearing a prominent warning to that effect.

Crucially, there is no reference to the first Monograph and the subject, nor of the follow-up. Stensrud shows no signs of having read them. This is quite typical of the way these people operate – dipping into my work just sufficiently to get the gist of it, without studying or understanding the arguments.

The superficiality of this approach, however, immediately becomes apparent when Stensrud complains that in the one and only article to which he refers, I state that "no less than four"’ countries invoked Article 112 in 1992 when the EEA Agreement was signed. But, he then claims that I have only named three of them: "Austria, Iceland and Switzerland".

Considering that the article is about the "Liechtenstein solution", which is indentified in the first paragraph, Stensrud might have guessed at the fourth country. Had he been truly unable to work it out, all he needed to do was read on to the next paragraph, which stated:
The Government of Liechtenstein invoked Article 112 in respect of capital inflows, concerns about access of the resident population to real estate, and "an extraordinary increase in the number of nationals from the EC Member States or the other Efta States, or in the total number of jobs in the economy, both in comparison with the number of the resident population".
For most people, that might have been a clue, but then we are talking about a Civitas "researcher".

Stensrud that tells us that, "according to North, the three countries specified "the need to protect real estate, capital and labour markets. Switzerland also ‘demanded protection from excessive immigration". The poor soul then tells us that he "looked for more information, but I have not been able to find any".

Yet, had he used the link provided in the very same paragraph which he cites, that would have taken him to the EEA "Final Act". This is a copy of the document agreed in 1992. It contains all the details needed, in 15 references.

Unable to perform such elementary tasks, however, Stensrud then makes the mistake common to lazy researchers (and those pressed for time), in relying on secondary sources to support his assertions. He thus declares that: "Articles 112 to 114 were introduced to 'complement transitionary periods in fields where some, or all, of the EEA/EFTA States experienced problems adapting to the acquis communautaire'", relying for his authority on this source.

Although prestigious, it's actually wrong - not least because Efta states don't adapt to the acquis communautaire. That is the body of law applicable to the EU, not the EEA. As to complementing transitionary periods, references in the original material – the primary sources – do not support this claim. We highlighted some in this Monograph, which Stendsrud could have usefully read.

Even a preliminary scan of this, this, this, this, and this - as original sources - would conform that "safeguard clauses" were included, "should serious problems arise on any point". They were not linked in any way to "transitionary periods" and, as a last-minute addition, they took on the tenor of "compensation" for the EEA Agreement not allowing full decision-making.

Mr Stendsrud, though, is a great believer in using secondary sources - by far the bulk of his 16 references rely on them.

Generally, one of the near-unbreakable rules in research is that, wherever possible, one should use primary sources. When I have taken short-cuts and used secondary material, that is where I most often go wrong – as indeed I did misreading this and attributing the Icelandic 2008 action to suspend capital movements to Article 112. In fact, Iceland chose to invoke Article 43.

This error does not in any way affect the overall argument, but Stensud has picked me on it, ironically relying on his earlier secondary source. I have corrected the Monograph and the blogposts, linking to the original notification.

With that, one can imagine that Stensud, having dipped his toes in the hateful North material, has recoiled in horror and rushed back to the warm embrace of his comfort zone, relying on opinionated material from a prestigious source.

This, with no evidence at all, asserts that: "… the likelihood of the UK being able to negotiate and opt-out of the free movement provisions on joining the EEA are slim" – apparently unaware that we are already in the EEA and could probably remain in it via the Efta, whence we could invoke Article 112 unilaterally.

To add no evidence to no evidence, this is bolstered by yet more assertions, and even more, the latter informing us that:
There may be a solution in Articles 112 to 114 of the EEA agreement which provide for an 'emergency break' mechanism allowing EEA EFTA countries to take safeguard measures to temporarily suspend parts of the EEA agreement, including the free movement of persons. But any such measures must be temporary…
There is absolutely no evidence to support this claim - and much to refute it. Yet this is how these people work. They barely look at the arguments, and then only enough to be able to miscast them. They eschew facts and original source material and surround themselves with "prestige" to give substance to unsupported opinion, perpetuating and reinforcing the multiple errors that taint the argument.

His shoddy work thus allows Stensud to conclude that "Article 112 is intended for emergency situations", adding that, "Whilst it might give the UK some flexibility to impose temporary migration controls if the circumstances justify it, it is not a mechanism that the UK could use to permanently curb migration".

Thus does he not only perpetuate easily refutable errors, he completely misses the point that Liechtenstein used Article 112 to broker a permanent amendment to the EEA Agreement. Despite reviews, it remains in place and would require a further treaty amendment to displace it (requiring the assent of Liechtenstein).

However, when you don't read the arguments, don't rely on original source material, don't refer to the originator of the work, and wrap yourself up in unsupported opinion, you can come to any conclusion you like. If you add lots of references which make it look as if you've done some real research, and then rely on the prestige of the institution for which you write, you can turn such work into "received wisdom".

The crucial thing though is this sort of thing survives only because the self-serving claque of (largely) London-based think-tanks and their hangers-on ruthlessly exclude dissenting views, promoting their own as the one true faith.

Ironically, Civitas has recently published a treatise on academic freedom, with no less than 44 references to freedom on speech. Yet, in its own affairs, that that is the one thing it will not allow. You are either of the faith, or you're invisible.

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