Richard North, 11/01/2017  
 


Before I go any further, let me give you all notice that we're planning a public meeting in One Great George Street for 7 MARCH (provisionally 2-5pm), sponsored by Anthony Scholefield and his Futurus think tank. I will blog on this shortly, in more detail (note the corrected date).

As to the substantive subject of this blogpost, we turn initially to the Financial Times and a most extraordinary piece by Andrew Lilico, executive director and principal of Europe Economics, headed: "How Britain can make the most of leaving the single market".

Lilico's thesis is that, outside the Single Market, "the UK will be able to choose rules and regulations for itself", a claim that is so bizarre that one wonders where Mr Lilico has been all these years. Reading his article is like being trapped in the computer game "Where time stood still, derived from the seventies film, The land that time forget".

The plot in each case involves travellers stumbling across a hitherto undiscovered spot where time has stood still and dinosaurs freely stalk the land. Since prehistoric times, nothing has changed.

So it is with Mr Lilico. His mind has frozen around ideas culled from debates decades ago, and not a single new idea has entered since. Once we have left the EU (and the Single Market), he asserts, "the flexibility to try things, make mistakes and try again could allow the UK to become a world leader in the regulation of innovative sectors, attracting businesses and incubating new firms and ideas".

It's a lovely idea, of course – harping back to Queen and Empire, when we made the regulation for half the globe. But trotting out this sort of argument now suggests that globalisation never happened, that there are no global standard-setters and things like the WTO Agreement on Technical Barriers to Trade never existed. In effect, the entire post-war timeline has been re-written.

To allow Mr Lilico to inhabit a time-warp, however, is to be quite gentle with him. Otherwise we might have to suggest that he is the epitome of arrogance. In that event, we might observe that he is a man who has ignored many of the studies and writings in this field, treating them of no value, while elevating his own opinions above those of us mere mortals. The Mighty Lilico has spoken – and we, the plebs, don't count.

Another player seemingly locked in his own private time warp is Christopher Howarth, writing in Conservative Home, seeking to tell us that "EEA membership is incompatible with running our own migration policy".

In passing, Howarth offers us a gem on the "Norway option" so archaic that Noah must have wearied of it. "Membership of the internal market" he tells us, means accepting a legal structure which encompasses a "vast body of EU rules, subject to the European Court".

In addition, he says, 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". This is what David Cameron, to his credit, saw as a disastrous arrangement – "fax democracy" - where EU rules spew out of a machine in Vaduz, Reykjavik and Oslo without any recourse.

However, despite the antediluvian nature of this argument (and the fact that he confuses the "internal market" with the "Single Market"), one is less inclined to accept that Howarth is trapped in a time warp. There is after all a certain malevolence in the way he addresses our arguments on freedom of movement as "yesterday’s game played by yesterday's people". Arguing that there is room for manoeuvre on this issue, it seems, is - according to Howarth - a "rogue belief" which should be ended "once and for all".

This is Mr Howarth's idea of debate, which makes it rather entertaining to find one of his supportive commenters airily declaring of me that I have "no talent for persuading people" and am "increasingly ... intolerant of any alternative view, no matter how gently it is expressed". Whatever these people might have, no one could accuse them of being over-endowed with self-awareness.

Returning to Mr Howarth, another of his little debating tricks is to frame the argument before he gets to the substance. We are being asked to believe, he asserts, "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".

We will deal with the question of negotiating an exemption to free movement, as it relies on the EEA Agreement but, as anyone with eyes to see will find out, there is no question of Article 112 – on which we rely – being "small print". It is exactly the same sized font as the rest of the Agreement.

What Howarth is trying to do is signal that Art 112 is somehow a exceptional get-out rather than being a core element of the Treaty. Denigration is all part of the package.

The supporting arguments from "yesterday's people" are set out in my Monograph 1 - ten pages of closely argued prose, densely referenced to primary sources. But Howarth does not refer his readers to this material. He doesn't even mention it. Instead, it becomes a "theory" which rests on two pieces of "evidence" (embellished with scare quotes) which he alone defines.

Intentionally or not, though, Howarth gets it wrong. One rather suspects that it is intentional, taking us into straw man territory. It has all the hallmarks of setting up a flawed argument in order to make it that much easier to knock it down.

"First", he says, "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", he adds, "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... '".

In fact, the sequence (and emphasis) is different in important respects. First of all, Liechtenstein invoked in the Final Act setting out the EEA Agreement a reservation on freedom of movement, invoking Article 112. This was accommodated in the Agreement by exemptions written into a transitional Protocol. This expired on 1 January 1998.

With no extension agreed, Liechtenstein thus again invoked Article 112, unilaterally, which allowed it to keep its exemption in force. That action precipitated further discussions which led to an amendment to the EEA Agreement, incorporating "sectoral adaptations" to Annex VIII, approved by the EEA Joint Committee.

Although this is subject to a five-year review (as indeed is the entire EEA Agreement subject to a periodic review), it is a fully-fledged amendment to the Agreement which cannot be changed without the consent of Liechtenstein, effectively making it permanent.

These are the facts of the situation – verifiable and verified by reference to the primary sources. But Mr Howarth does not trade in facts. Taking the first (straw man) argument, he in turn argues that, while the UK "is arguably suffering extreme population pressure", 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".

All this, of course, is irrelevant. The UK as an Efta State (a status which we argue it should seek) can, as of right, invoke Article 112 unilaterally, and suspend freedom of movement. It does not need a "special protocol" and it does not need the assent of the EU.

For sure, under Article 114, if the action taken by the UK "creates an imbalance", any other Contracting Party may "take such proportionate rebalancing measures as are strictly necessary". In the circumstances, one might expect one or more of the parties to impose their own "tit-for-tat" restrictions on the free movement of UK citizens, although measures adopted must "least disturb the functioning of the EEA", which rather restricts their scope.

So far, so good, but Mr Howarth falls back on the tired old canard that: "The UK is not Lichtenstein, we are not a micro-state that the EU can afford to make an exception for". Yet size is not a qualifying issue specified in Article 112. Furthermore, safeguard measures stand alone. They are not a matter for the EU, but are, in respect of Efta States, unilateral action.

Still Howarth does not give up. "In any case", he says, "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". Again, however, his argument is irrelevant. The UK, if it followed the path of Liechtenstein, would use Article 112 to broker a permanent amendment to the EEA Agreement. And that would, effectively, make it permanent.

This leaves Howarth then to argue that the use of Article 112 is "superficially attractive" but (in his opinion) "highly implausible". It would, he says, "require the UK to provide evidence and explain why its measures were appropriate in a way that would satisfy an unsympathetic EU". But it would not. Invoking Art 112 for an Efta State is a unilateral right. It would have to make its case, but then go ahead anyway.  

Now confusing himself completely, as well as his readers, Howarth avers that, in Cameron's renegotiation these factors were hard fought over, were time-limited and related to benefits. But, "if the UK announced it was to join the EEA" and then immediately and permanently overrode 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".

For this "killer point", though, we have observed that the UK is already a Contracting Party to the EEA. Provided it made an uninterrupted switch from EU to Efta membership, precedent suggest that it could continue as an EEA member. It would not need agreement from the other parties.

All Howarth has left is his final throw, that the Efta Court has adopted much of the EU's case law on free movement. The UK, in his opinion, "would end up in a running dispute with the EU, which would leave it expending all its political capital". There again, the ECJ does not make EEA law, so there is nothing in case law that could interfere with Article 112. It doesn't stop Liechtenstein exempting itself from freedom of movement.   

Nevertheless, Howarth stands by his opinion that Article 112 "is not an option that is designed to give states control over migration policy – and nor would it". But, if he's entitled to an opinion, that's all it is – an opinion. That hardly justifies him calling our research a "rogue belief" - "yesterday’s game played by yesterday's people" - which should be ended "once and for all".

And there, Howarth really is in a time warp. Long gone is the time when he can dominate the debate, seeking to take ownership of it, sneering at people who are his senior in age, experience and qualification.

These snide creatures – Lilico, Howarth and many like them - poison the debate and damage the political system with their arrogance, their assumptions and sloppy, low-grade research. They need to realise that they no longer have the monopoly of opinion, and while their prattle may satisfy their Tory Boy fans and the bubble dwellers, out in the real world it looks exactly what it is – smug, ego-driven platitudes of very little value, in a land where time stood still.






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