Brexit: options

27/11/2018

I read with wry amusement the piece in the Guardian a few days ago which had Shanker "Snake Oil" Singham complaining that he was "deeply frustrated" by the prime minister's decision to effectively ignore his proposals.

One can take home several things from that, including a suggestion that being sponsored by a think tank with an annual budget of £3 million and being personal friends with Steve Baker (while he was a minister in DExEU) doesn't get you a seat at the table. The same also goes for Singham's press coverage, the expensively-produced reports he's churned out, his frequent evidence to select committees, and the "Ultras" telling us how wonderful he is. It has had no effect whatsoever. 

Doubtless, the fact that he is a conman with – as the Guardian points out - an extremely dubious c.v., cannot have helped, although it's certainly got him a great deal of notoriety and his feet under the table in the halls of the more gullible Eurosceptics and their wealthy sponsors.

But if being a con artist with a multi-million budget behind you – and the "prestige" of one the nation's best known right-wing think-tanks – isn't enough to avoid having your proposals ignored by a Tory prime minister, it is not unreasonable to ask what it does take to get a hearing.

To that, though, we are all too well aware of the answer. In short, there is very little one can do. It is hardly disputed that Mrs May is not the greatest of networkers, and limits herself to listening to a very small, tight band of advisers – excluding input from most other sources – including her own ministers. And if she doesn't listen to the her own, high ranking associates, one can hardly be surprised if outsiders don't get a look in.

However, Singham has yet another barrier standing in his path to fame and fortune (as opposed to mere transient notoriety). He can come to his chosen area without understanding the basics of the issues of which he speaks, making a series of "rookie" errors, while presenting an overall case which almost completely lacks intellectual coherence.

And while intellectual coherence won't guarantee a hearing, it does give you longevity. By contrast with flash-in-the-pan exudations from other sources, our plan for extracting us from the EU has been around more than four years now, and has never been seriously challenged. By next year, I'd almost be prepared to put money on Singham disappearing without trace. But we'll still be here, and our ideas will survive, long after he is a distant memory.

The same goes for Nick Boles, and his latest round of stupidity which rejoices in the title "Norway Plus". In my quick overview yesterday, I noted that he'd abandoned his previous stupidity, where he had argued for Efta/EEA to be used as a temporary parking place while we search for something better.

To replace it, he now argues for an "indefinite" commitment to the EEA, which should be written into the political declaration on the back of our accepting the withdrawal agreement. Like many others, Boles seems to be of the impression that because the declaration lacks the legal force of a treaty, it is not in any way "binding". Yet, as I have pointed out earlier, political declarations have their own power. Legal instruments, with the courts behind them, are not the only way binding commitments can be made.

The lack of understanding of this point is rather remarkable, and getting a little tiresome. One of the most powerful and enduring international accords in post-war history is the Universal Declaration of Human Rights, framed in 1948. And since then there have been many other declarations on the issue which, collectively, have transformed the way we look at human rights.

Mr Boles will find we can no more walk away from the political declaration on our future relationship than we can the withdrawal agreement. To treat the two as anything other than an indivisible package is simply not sensible.

And this is not the only gap in Mr Boles's thinking. Failing to understand the nature and scope of the EEA Agreement – which allows for tariff-free trading and measures on rules of origin – he argued that we should agree a customs union with the EU, something which is not exactly compatible with Efta membership and, in any event, is entirely unnecessary.

But perhaps his most significant lacuna is his assertion that the EEA and Efta "already exist so joining them wouldn't require the negotiation of a bespoke set of arrangements". Unlike a Canada-style FTA, he says, "the EU could agree to Norway Plus straight away".

This is not only stupidity – it is pig-headedness. We've pointed out many times the structure of the EEA Agreement as an adaptive framework, where none of the three Efta/EEA states have identical agreements, with country-specific protocols and multiple amendments to the Annex entries which are the repository of the bulk of the legislative acquis.

For a complex and sophisticated trading nation such as the UK, many amendments to the EEA Agreement would be needed to accommodate our needs, on top of which it must be recalled that Norway is party to around 50 additional bilateral agreements with the EU, in order to manage its relationship. Far from being something that could be agreed "straight away", it is difficult to see how the Efta/EEA option, with the necessary add-ons, could be concluded within the 2-3 years afforded by an extended transition period.

The extent of Boles's stupidity, however, does not end there. He miscasts Article 112 of the EEA Agreement, stating that, after December 2020 the UK remains subject to freedom of movement "but has a new reserve power which might be used to impose temporary limits on immigration if 'serious economic, societal or environmental difficulties' arise".

Apart from the fact that measures need not be temporary, Boles fails to understand that retroactive application of the Article, after we have joined, could only take account of "serious economic, societal or environmental difficulties", arising after we had re-joined the EEA.

What this man hasn't realised is that, after the EEA Agreement was signed by all parties in 1992 but before it came into force, two signatories – Liechtenstein and Switzerland – gave notice of their intention to invoke Article 112 on immigration matters, so that they could deal with conditions then existing. To achieve the same effect, the UK would have to give notice of intent before it joined, the issue then becoming part of the accession negotiations.

Putting all this together, we can only conclude that Mr Boles's self-styled "Plan B" isn't a plan at all. It is a half-understood jumble of measures that has not the slightest chance of implementation.

If we are to look realistically at the options open to us, we have a choice of accepting the May "package", then working to implement the political declaration, as it stands, through the extended transition period. Under that scenario, if we want to adopt the Efta/EEA option, the time to do that is after the transition period ends. For this, of course, we have to stave off the "backstop".

If the "backstop" comes into force, the UK will be required to "harmonise the commercial policy applicable to its customs territory with the common commercial policy of the Union…", which on the face of it, would prevent the UK from re-joining Efta (even without the problems of the customs union).

To avoid the gamble presented by this broader option, the alternative is to opt for the "no deal" scenario, whence we would be free to commence negotiations with the Efta states from the end of 29 March 2019 - just supposing they are prepared to talk to us. 

And there is an issue there: should we signal to the EU prior to leaving that we intend to go for the Efta/EEA option, it might be more disposed to concluding a series of temporary arrangements which would minimise the disruption that might otherwise occur, while supporting our application to rejoin Efta.

Thus, rather than take the extremely unwise step of junking the political declaration, we need to open the books to the EU, and declare an intent to pursue the Efta/EEA option – if that is what we are prepared to do. Any next step should then be taken in consultation and with the agreement of the EU and the Efta states.

Attempting to take the Boles route would be a recipe for disaster, and already Mrs May is highlighting its flaws. According to The Times, she is framing the choice as between her deal, no deal or no Brexit.

In her view, any deal with the EU would require the same guarantees to avoid a hard Irish border, the most controversial aspect of the divorce deal agreed on Sunday. "There's no deal that comes without a backstop and without a backstop there’s no deal", she says.

With that, the political reality is that Mrs May is simply not going to entertain the Efta/EEA option. Probably our only bet, short of the Armageddon on the "no deal" scenario, is to run with her "deal" in the hope that she pulls off an agreement on our future relationship without the "backstop" kicking in.

Most likely, it will then be left for a future prime minister to take us back into Efta, and thence to the EEA. But as to a timescale, that can only be conjecture.