EU security and counter-terrorism control after Brexit

Dominic Grieve, the Conservative Chairman of the Commons Intelligence and Security Committee, argues that the UK must retain membership of the EU’s law enforcement agency (Europol) after Brexit, even if this means “accepting EU rules and judicial oversight for the European Court of Justice (ECJ).” This is not real Brexit and nor will it make us safer, in fact quite the reverse.

Security is the new defining issue of both British and European politics. Even the United States is concerned that Europe’s problem is a danger for us all. It will also form the key issue in the Article 50 Brexit negotiations, or at least so the Government hopes. According to The Daily Telegraph, the Cabinet meeting of 7th March 2017, which approved the strategy for PM Theresa May’s opening gambit in her soon to be sent Article 50 letter mentioned security no less than 11 times.

This was seen as using ‘blackmail’ and ‘threats’ and taking advantage of the fear of Russia. The governments thinking is that security is the ‘defining issue for the EU.’ And that the government believes that this issue gives Britain a ‘very strong hand’ in its forthcoming negotiations with Brussels.[i] It is surprising that a Conservative Government would see benefits in the fact that the EU’s eastern frontier is unstable and, in the view of some, vulnerable to Russian aggression.

Theresa May has not been alone in taking a robust approach to the EU and playing the security card. The Home Secretary, Amber Rudd, has said that the UK could stop co-operation with Europol. Perhaps the British government may even come out of the European Arrest Warrant… but that may be too much to hope for.

The flip side of the Government’s perceived threats not to participate in security measurers if no trade deal is forthcoming, is that if the EU does acquiesce to Britain’s demands then the UK will support and participate in Brussels ambitions in this area.

The benefit of the European Arrest Warrant and EU led police, judicial and intelligence cooperation is itself highly questionable. There are other ways with which a post-Brexit UK can still cooperate with other nations, and attempt to keep its citizens safe. Click here to read a recent article which details how this can be achieved.

There is a presumption that intelligence and data sharing via the EU is a good thing. This is not necessarily so. Compelling the UK to share information breaches the cardinal rule of intelligence, control over that information. Indeed, the US intelligence agencies drew the ire of the British government after they leaked information on the Manchester terror attack. The BBC reported that police stopped passing America information on the Manchester attack.[ii] Yet, even bigger issues are at stake. The effectiveness of how best to protect people is at stake and the independence of our security services from Brussels.

Dominic Grieve, the Conservative Chairman of the Commons Intelligence and Security Committee, argues that the UK must retain Europol membership after Brexit, even if this means “accepting EU rules and judicial oversight for the European Court of Justice (ECJ)”.[iii] In these times, the European Union is being touted by some unformed remainers as an answer to Europe’s terror threat.

In the referendum, they warned that Brexit will mean that the UK will be outside of Europol. This would not be a bad scenario as its officers are ‘immune from legal proceedings in respect of acts performed by them in their official capacity’. Yet, the Director of Europol, Rob Wainwright, recently stated that a post-Brexit UK can indeed still cooperate with the EU’s law enforcement agency. So, the arguments used by Remain in the referendum were clearly false. Yet, is the EU and coordination of security the answer to our safety? Some would argue that it has exacerbated the terrorist problem we now face.

EU Freedom of Movement was described by Ron Noble, the Head of Interpol, as “like hanging a sign welcoming terrorists to Europe.”[iv] He is not alone in his criticism. Sir Richard Dearlove, the former head of MI6, stated that Brexit is a security gain as it will allow us to have “greater control over immigration from the European Union.”[v] Indeed EU Directive 2004/38 stipulates that an immigrants criminal record is not grounds to refuse entry to the UK.

Sir Richard’s assessment of EU security agencies is that “…though the UK participates in various European and Brussels-based security bodies, they are of little consequence.” Ultimately his assessment is that these bodies have no operational capacity and are mainly forums for the exchange of ideas.

Just because these bodies are ineffectual is not the only problem. The even more significant issue is that EU led intelligence will detract from Britain’s participation in global bodies such as the ‘Five Eyes’ Intelligence-sharing partnership.[vi]

Another layer of EU bureaucracy taking over intelligence is no substitute for effective national control. Yet this emerging bureaucracy, indeed it has several new tiers, is exactly what Brussels is putting into place. And perhaps even keeping a post-Brexit UK tied into their structure. The EU has created Eurojust, the European Union’s Judicial Cooperation Unit, and in 2010, as a part of Europol, they established in 2010 the European Cybercrime Task Force (EUCTF).

Charles Michel, the Prime Minister of Belgium has called for “A European CIA (Central Intelligence Agency).” This is just the beginning the European Commissioner for Migration and Home Affairs, Dimitris Avramopoulos, also called for a pan-European spy agency.[vii] The President of the European Commission is also in favour of the EU coordinating member states secret services.[viii]

What is not realised by many is that these plans are already underway. The EU Intelligence and Situation Centre (EU INTCEN) came into being in 2011 and is the intelligence body of the European Union. It operates under the European External Action Service (EEAS). Along with the European Union Military Staff (EUMS) which handles military intelligence, EU INTCEN is part of the EU’s Single Intelligence Analysis Capacity (SIAC). These bodies are not effective.

Richard Wilton, Head of Counter Terrorism Command at New Scotland Yard from 2011-15, is adamant that EU led intelligence sharing matters not and Britain’s counter-terrorism capability will not be harmed by Brexit.[ix]

Sir Richard Dearlove dismissed the relevance of Brussels security bodies such as Europol, stating they were “of little consequence”. In fact, they are worse, as the fear of leaks is ever present. According to Sir Richard Dearlove British information is not shared throughout the EU as its members are potentially a “colander” for intelligence.[x]

The EU does not have a great track record on security. The EU’s Focal Point Travellers initiative, which seeks to coordinate investigations into foreign terrorist fighters in Europe from places such as Syria and Iraq only has information on 2,000 suspects which is less than half the foreign fighters known to individual EU member-states security services. And of course, this is just a fraction of both the number of people who have recently arrived in Europe from the middle-east and those homegrown people that sympathise with the jihadis. There is an intelligence black hole at the heart of Europe Union.[xi] Europol’s European Counter Terrorism Centre is not making us any safer.

Currently the dead hand of the European Union has been of little benefit tackling the problems that emerge out of places such as Molenbeek, Malmö and the suburbs of Paris, and clearly in the UK as well. Our safety cannot be outsourced to the EU as the likes of Dominic Grieve suggest. Nor is there the need. The UK is an intelligence leader and does not need the control of the European Union. Other states will, and do, want to share intelligence with Britain.

Britain’s intelligence services, along with our armed forces, are areas where we have an important resource which the EU is seeking to co-opt. Brussels is not stopping at the EU developing an intelligence arm. It is also building its military capacity, to back up its foreign policy[xii] and no doubt to establish its power at home and abroad. The plans are already underway.[xiii]

In the Brexit negations, which start on 19th June, the British Government must stand firm against EU attempts to take a measure of control over our excellent military and intelligence resources, and certainly not offer them up as part as some deep and special arrangement with Brussels. We can cooperate with global bodies and individual nations, but more EU bureaucracy in this important area is an unwelcome distraction.

[i] http://www.telegraph.co.uk/news/2017/04/01/revealed-cabinet-plotted-exploit-eus-defence-fears/
[ii] http://www.bbc.co.uk/news/uk-politics-40040210
[iii] https://www.theguardian.com/politics/2017/may/27/eu-theresa-may-combat-terror-brexit-europol
[iv] https://www.nytimes.com/2015/11/19/opinion/europes-welcome-sign-to-terrorists.html?_r=0
[v] http://uk.reuters.com/article/uk-britain-eu-security-idUKKCN0WQ0NE
[vi] http://www.pbs.org/newshour/rundown/an-exclusive-club-the-five-countries-that-dont-spy-on-each-other/
[vii] http://www.euronews.com/2015/11/30/belgium-s-pm-michel-calls-for-a-european-cia
[viii] http://www.euractiv.com/section/global-europe/news/juncker-warms-to-the-idea-of-an-eu-intelligence-agency/
[ix] https://www.thesun.co.uk/news/3676254/former-counter-terror-chief-says-britains-security-wont-be-harmed-by-brexit-because-of-our-spooks-global-reach/
[x] http://www.telegraph.co.uk/news/2016/03/24/quitting-the-eu-would-help-our-security-former-mi6-chief-suggest/
[xi] http://www.politico.eu/article/europes-intelligence-black-hole-europol-fbi-cia-paris-counter-terrorism/
[xii] http://www.bbc.co.uk/news/world-europe-31796337
[xiii] http://www.consilium.europa.eu/en/infographics/eu-global-strategy/

Another nail in the coffin of the Single Market?

Last month, an event occurred which got little fanfare, but is likely to have a significant effect on the future of the UK, especially after Brexit. What happened was that the WTO Trade Facilitation Agreement has now entered into force

Lord Lamont, the former UK Chancellor of the Exchequer wrote in The Telegraph:wto

The single market is open to all advanced economies, in exchange for paying a relatively modest tariff of 3 to 4 per cent, something that evidently does not stop non-EU countries from selling within it.

‘Every developed country has access to the single market. The EU has a relatively low external tariff with the exception of certain goods such as agriculture.’[i]

When taken prima facie, Lord Lamont’s comments are seemingly correct. Only those countries who are essentially rogue states or have violated international agreements don’t have the ability to conduct trade with the EU, and the EU’s external tariffs are fairly low.

But Tariffs are only half of the story.

The problem of tariffs could be easily addressed by the UK signing a goods Free Trade Agreement (FTA) with the EU. Given the high volume of UK- EU 27 trade, this is seemingly a given.

A basic FTA need not take long to complete. The EU’s earlier iteration the European Economic Community (EEC) concluded basic FTAs in the early 70’s that took 6-7 months to agree, sign and come into force.

But the other half of the story relates to non-tariff barriers (NTBs), sometimes called “Non-Tariff Measures (NTMs)”. These comprise everything else that can slow down trade or make it more expensive or complex.

The European Commission describes the Single Market as:

‘…one territory without any internal borders or other regulatory obstacles to the free movement of goods and services. The Commission works to remove or reduce barriers to intra-EU trade and prevent the creation of new ones so enterprises can trade freely in the EU and beyond. It applies Treaty rules prohibiting quantitative restrictions on imports and exports (Articles 34 to 36 TFEU ) and manages the notification procedures on technical regulations (2015/1535) and technical barriers to trade.’[ii]

So the Single Market goes beyond tariff reduction, and encompasses far more than just a Free Trade agreement. This is why the ‘remain’ side in the EU referendum campaign were so concerned about the UK leaving the European Union’s Single Market.

‘Remainers’ believe that after Brexit, even if the UK does get a Free Trade Agreement, our importers and exporters will be deluged with red tape, endless forms, checks and other barriers to entry as we will be operating outside the Single Market.

These are valid concerns, but we believe they are largely exaggerated – and here are the reasons why:

wco

The EU has signed up to the WCO

In July 2007[iii], the EU signed up to the World Customs Organization (WCO) which works to enhance customs co-operation between signatory countries and works to simplify issues such as Rules of Origin (ROO).

From the European Commission’s own press release:

‘On 30 June 2007, the Council of the World Customs Organization (WCO) decided to accept the request of the European Union to join the WCO as of 1st July 2007. This decision grants to the European Union rights and obligations on an interim basis akin to those enjoyed by WCO Members.

‘The WCO plays an important role in promoting international customs co-operation and addressing new challenges for customs and trade. It is deeply involved in designing and implementing policies worldwide that integrate measures, which help ensure supply chain security, combat counterfeiting, promote trade and development, as well as guarantee efficient collection of customs revenues. Membership of the WCO highlights and confirms the central role and competence of the EU in international discussions on customs issues including customs reform. EU involvement in the WCO will focus on the full spectrum of customs issues, in particular the following broad areas:

  • Nomenclature and classification in the framework of the Harmonised system;
  • Origin of goods;
  • Customs value;
  • Simplification and harmonisation of customs procedures and trade facilitation;
  • Development of supply chain security standards;
  • Development of IPR enforcement standards;
  • Capacity building for customs modernisation and reforms, including in the context of development cooperation;
  • Mutual Administrative Assistance for the prevention, investigation and repression of customs offences.

‘The EU is a contracting party to several WCO Conventions, and contributes to the work of this organisation, including by ensuring presence and coordination with the Member States in defining and representing EU positions in the relevant bodies managing these conventions.’

The UK signed up to the WCO in the 1950’s and is a signatory in its own right, so will be able to address customs issues with the EU via this body after Brexit.

Harmonisation with EU rules

The UK’s rules and regulations are already synchronised with EU/EEA (European Economic Area) regulations and standards after decades of membership. This will also be true on the day after Brexit due to the Great Repeal Bill. Hence a strong (if not overwhelming) argument for ‘rules equivalence’ can be made.

The WTO Agreement on Rules of Origin (ROO)

This agreement encourages WTO countries (including all EU countries) to have fair and transparent rules pertaining to Rules of Origin:

 wtostructure

These rules state that:

‘Rules of origin shall not themselves create restrictive, distorting, or disruptive effects on international trade.  They shall not pose unduly strict requirements or require the fulfilment of a certain condition not related to manufacturing or processing, as a prerequisite for the determination of the country of origin….rules of origin are administered in a consistent, uniform, impartial and reasonable manner’.[iv]

Guidelines in the EU treaties

treatylisbon

Article 8 of the Lisbon Treaty states that:

‘The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.[v]

As the UK will become a new ‘neighbouring country’ after Brexit, the EU is compelled to deal with us according to the Article 8 terms.

WTO Technical barriers to trade Agreement

The TBT agreement is key – it means that signatories (again, including the EU) agree to abide by rules about international product and technical standards. From the European Commission’s website:

‘The TBT notification procedure helps prevent the creation of international technical barriers to trade. It was introduced by the Agreement on Technical Barriers to Trade (the TBT Agreement), a multilateral agreement administered by the World Trade Organisation (WTO). It gives participants advanced knowledge of new technical regulations or conformity assessment procedures envisioned by other countries. The EU’s participation in the TBT Agreement helps businesses in EU countries access markets outside the EU.’

Aim of the TBT notification procedure

To avoid any potential technical barriers to trade, WTO Members submit national legislation at draft stage to other members of the TBT Agreement. They can then assess the impact on their exports and identify any provisions breaching the Agreement.

While allowing all WTO Members to maintain their right to adopt regulations, the TBT Agreement aims to:

  • prevent the creation of unnecessary and unjustified technical barriers to international trade;
  • prevent the adoption of protectionist measures;
  • encourage global harmonisation and mutual recognition of technical standards;
  • Enhance transparency.[vi]

The commission somewhat downplays the TBT agreement, however. What it actually states is that:

‘Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

‘Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade.

‘Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations. Members shall give positive consideration to accepting as equivalent technical regulations of other Members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfil the objectives of their own regulations.’[vii]

Since UK regulations and standards will be equivalent to their EU counterparts from day one, and will continue to meet international standards going forward, it will be extremely difficult for the EU to reject UK products sold into the EU market.

WTO Trade Facilitation Agreement

The most recent agreement, the WTO Trade Facilitation Agreement (TFA) will further increase trade co-operation.

As the WTO website states:

‘The TFA contains provisions for expediting the movement, release and clearance of goods, including goods in transit. It also sets out measures for effective cooperation between customs and other appropriate authorities on trade facilitation and customs compliance issues. It further contains provisions for technical assistance and capacity building in this area.’[viii]

Perhaps especially important for Northern Ireland post-Brexit, the TFA also states that:

‘Each Member shall ensure that its authorities and agencies responsible for border controls and procedures dealing with the importation, exportation, and transit of goods cooperate with one another and coordinate their activities in order to facilitate trade.

‘Each Member shall, to the extent possible and practicable, cooperate on mutually agreed terms with other Members with whom it shares a common border with a view to coordinating procedures at border crossings to facilitate cross-border trade.’

The WCO welcomed the ratification of the TFA agreement in their press release of 22 February 2017, in which they wrote:

‘The World Customs Organization (WCO) congratulates the World Trade Organization (WTO) on the entry into force today of the WTO Trade Facilitation Agreement; an agreement that will expedite the movement, release and clearance of goods, including goods in transit, and which sets out measures for effective cooperation between Customs and other authorities, as well as provisions for technical assistance and capacity building in this area.

‘The WCO takes this opportunity to highlight that it will continue to seek improvements throughout the global supply chain to obtain the highest levels of safety, security and integrity, which will enhance trade facilitation for compliant actors. This will ultimately have a positive effect on the relationship between all border agencies and the Private Sector.

‘The entry into force of the Trade Facilitation Agreement (TFA) is an important milestone for the international trade and Customs community, coming about as a result of the fact that it has been ratified by 110 WTO Members, which pushes it above the threshold needed to take effect, namely ratification by two-thirds of the WTO’s 164 Members.’[ix]

In conclusion:

  • The volume and UK and EU will likely at least sign a basic goods FTA; meaning tariff-free goods trade will continue.
  • The UK’s rules and regulations are already synchronised with EU regulations and standards. This will also be true on the day after Brexit.
  • The UK and EU are signed up to the WCO, which exists to help simplify and resolve customs issues.
  • The WTO TBT agreement prohibits the EU from banning UK goods that meet international standards.
  • The WTO agreement on Rules of Origin means that the EU will have to ensure rules of origin are administered “in a consistent, uniform, impartial and reasonable manner” when dealing with exports from the UK.
  • The WTO Trade Facilitation agreement means the EU must co-operate with the UK on issues around the “movement, release and clearance of goods”.

When we combine these factors together we see that after Brexit, UK trade with the EU will be very similar after Brexit as before Brexit.

The EU has signed up to many agreements and treaties which in effect reduce the uniqueness of the single market.

Britain can therefore essentially have almost duplicate trade relationship by falling back on these international agreements (if necessary) which would mean that the UK could have the majority of the benefits of Single Market membership, but be free to choose which rules to obey when not exporting to the EU 27 countries or for domestic sale.

The TFA might not then be the final nail in the Single Market coffin (it is still useful to EEA members), but it is one substantial step towards reducing the importance of the Single Market to a post-Brexit UK.


[i] http://www.telegraph.co.uk/news/2016/06/13/not-only-can-britain-can-leave-the-eu-and-have-access-to-the-sin/

[ii] https://ec.europa.eu/growth/single-market_en

[iii] https://ec.europa.eu/taxation_customs/business/international-affairs/international-customs-cooperation-mutual-administrative-assistance-agreements/world-customs-organization_en

[iv] https://www.wto.org/english/docs_e/legal_e/22-roo_e.htm

[v] http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-and-comments/title-1-common-provisions/6-article-8.html

[vi] https://ec.europa.eu/growth/single-market/barriers-to-trade/tbt_en

[vii] https://www.wto.org/english/docs_e/legal_e/17-tbt.pdf

[viii] https://www.wto.org/english/tratop_e/tradfa_e/tradfa_introduction_e.htm

[ix] http://www.wcoomd.org/en/media/newsroom/2017/february/wco-welcomes-entry-into-force-of-the-wto-trade-facilitation-agreement.aspx

This article first appeared on the Bruges Group website and is used with permission.

The UK’s liabilities to the financial mechanisms of the European Union

Independent research, commissioned by the Bruges Group from acknowledged expert in this field Bob Lyddon, shows that the true extent of the UK’s potential exposure to the European Investment Bank (EIB), European Central Bank (ECB) and EFSM (European Financial Stabilisation Mechanism) is over £80 billion. If the crisis in the Eurozone continues this already high figure could increase massively. Far from Brexit being an economic disaster, as Mr Osborne has claimed, it could be hugely beneficial, extracting us from a large potential black hole.

The UK carries huge financial liabilities as an EU Member State, liabilities that could translate into calls for cash far higher than our annual Member cash contribution. These are created through various funds and facilities of the EU itself, and through shareholdings in the European Investment Bank and the European Central Bank. Each of these bodies engages in financial dealings on a large scale, with the Member States acting as guarantors for sums borrowed. The main recipients of funds are the Eurozone periphery states: Italy, Spain, Greece, Portugal and Ireland.

The UK, being one of the largest and most creditworthy of the Member States, is looked at as one of the guarantors most able to stump up extra cash as and when demanded, demanded, that is, by a Qualified Majority of Member States with no unilateral right of refusal. Such calls can be expected if another crisis blows up in the Eurozone.

The UK’s leaving the EU would relieve us of these considerable risks and liabilities. This independent research shows that Britain should leave the European Union. To download it, please click here.

Some helpful research and training videos from the Bruges Group

Emergency Exit by Marcus Watney

It isn’t going to be sufficient to grumble about how incompetent, dictatorial and corrupt the EU is. We are going to have to show convincingly that outside the EU we will be more free and more in control of our own lives; that freedom is something to be positively desired and pursued, and that liberty is priceless and so cannot be measured in pounds and euros.

We need to focus the debate on exactly how the new co-operative alignment of sovereign states that eventually replaces the European Union is likely to be structured. Only then will people stop obsessing over whether it is safe to leave the moribund EU, and begin to take departure for granted. Thinking and debating where you are going is always more exciting than mulling over where you have come from.

This paper is a comprehensive critique of the EU and a look at what can be once we are free. It can be downloaded here.

Videos to help activists

These short videos are intended as a training tool for speakers on the front line. hey are to equip team leaders with quick ways to express the ideas we all fell – and ot give pertinent facts and figures that you can readily deploy.
Some are a look at serious issues in a new way; others look at campaigning, offering useful information in an accessible format.  The full selection can be accessed here.

Freedom of Movement between EEA (European Economic Area) states and the EU

A helpful summary by Robert Oulds of the restrictions on free movement of people which EEA states outside the EU can apply

Membership of the European Economic Area Agreement outside the EU includes the principle of free movement of labour but does allow EEA states in practice to place restrictions on immigration from EU states.

It is possible to impose restrictions on immigration (from EU and other EEA countries) whilst remaining in the EEA. Liechtenstein, an EEA member with less potential influence than Britain, continues to use clauses in the EEA agreement to restrict the movement of persons. Article 112(1) of the EEA Agreement reads “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 under the conditions and procedures laid down in Article 113” The restrictions used by Liechtenstein are further reinforced by Protocol 15 (Article 5-7) of the EEA Agreement. This allows Liechtenstein to keep specific restrictions on the free movement of people. These have been kept in place by what is known as the EEA Council (1) .

There will also be greater latitude to restrict non-British EU citizens’ access to benefits and to deny residency to those who are deemed not to have sufficient resources to support themselves. The current debate in Britain on immigration largely ignores the role of the European Court of Human Rights and the European Convention. Article 3 of the Convention (inhuman or degrading treatment or punishment) and Article 8 (private and family life, his home and his correspondence) would also be relevant to the issue of immigration. These two articles are often taken together , especially in cases of repatriation.

EEA/EFTA states are outside the provisions of Article 6 of the EU’s Treaty on European Union which states: 2. The Union shall accede to to to the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law..

There is already a great deal of flexibility in the EEA agreement. This goes beyond the ability to restrict immigration an opt-out of areas of EEA rules. Iceland even unilaterally imposed capital controls after its financial crash of 2008. This is permitted within the EEA safeguards. Article 112.(2). There is also no enforcement mechanism to prevent this from happening even if such flexibility was not contained within the EEA. Whilst this paper does not advocate such a policy it shows that some restriction on the free movement of people can be implemented.

The EEA rule relating to freedom of movement, Directive 2004/38 has qualifications, conditions and limitation. Persons exercising their right of residence should not however become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore the right of EU citizens and their family members for periods of residence no longer than three months should be the subject of conditions. For periods of residence longer than three months. Member states should have the possibility to require EU citizens to register with the competent authorities in the place of residence, attested by a registration certificate issued to that effect.

The treaty allows restrictions to be placed on the right of free movement and residence on the grounds of public policy, public security or public health. Article 7. 1b(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state. (3) No right is absolute and neither is freedom of movement within the EEA nations after they have assessed the relevant legislation and applied it according to their own interpretation of what freedom of movement means.

Footnotes

(1) EEA Council Decision No 1/95 . Official Journal of the European Communities, 20 April 1995, pages
L 86/58 and 86/80 .

(2) Official Journal of the European Communities , 3 January 1994, pages L/28, 176-8 and 562

(3) Directive 2004/38/EC of the European Parliament and Council of 29 April 2004.

Some Restriction on free movement of people is possible within the EEA agreement

Remaining in the single market as an interim option after leaving the EU does allow a country to place restrictions on immigration. The so-called “Norway Option” is being widely debated at the moment, but it has received a good deal of criticism from those whose prime reason for supporting withdrawal from the EU is their desire to see immigration reduced. Nevertheless, although this arrangement may not satisfy everyone seeking an “out” vote, not only it is the best way of ensuring we win a sufficient number of votes to leave the EU, but it does at least allow some restrictions on immigration, as Robert Oulds from the Bruges Group explains:-

It is possible to impose restrictions on immigration whilst remaining in the European Economic Area. Liechtenstein, an EEA member with less potential influence than Britain, continues to use clauses in the EEA agreement to restrict the movement of persons. Article 112(1) of the EEA Agreement reads: ‘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 under the conditions and procedures laid down in Article 113.’ The restrictions used by Liechtenstein are further reinforced by Protocol 15 (Article 5 – 7) of the EEA agreement. This allows Liechtenstein to keep specific restrictions on the free movement of people. These have been kept in place by what is known as the EEA Council.[1]

There will also be greater latitude to restrict non-British EU citizen’s access to benefits and to deny residency to those who are deemed to not have sufficient resources to support themselves. The current debate in Britain on immigration largely ignores the role of the European Court of Human Rights and the European Convention. Article 3 of the Convention (inhuman or degrading treatment or punishment) and Article 8 (private and family life, his home and his correspondence) would also be relevant to the issue of immigration. These two article are often taken together; especially in cases of repatriation.

EEA/EFTA states are outside of Article 6 of the EU’s Treaty on European Union which states; 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

 There is already a great deal of flexibility in the EEA agreement. This goes beyond the ability to restrict immigration and opt-out of areas of EEA rules. Iceland even unilaterally imposed capital controls after its financial crash in 2008. This is permitted within the EEA safeguards Article 112.[2] There is also no enforcement mechanism to prevent this from happening even if such flexibility was not contained within the EEA. Whist this paper does not advocate such a policy it shows that radical steps that run contrary, even to the four freedoms of the EEA, can be implemented.

The EEA relevant rule relating to freedom of movement, Directive 2004/38, has qualifications, conditions and limitation. (10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions. (12) For periods of residence of longer than three months, Member States should have the possibility to require Union citizens to register with the competent authorities in the place of residence, attested by a registration certificate issued to that effect. (22)

The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. Article 7, 1 b) (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.[3] No right is absolute, and neither is freedom of movement within the EEA. What is more, EEA rules only apply to EFTA nations after they have assessed the relevant legislation and applied it according to their own interpretation of what freedom of movement means.

Footnotes:-
[1] EEA Council Decision No. 1/95, Official Journal of the European Communities, 20th April 1995, pages L 86/58 and 86/80
[2] Official Journal of the European Communities, 3rd January 1994, pages L/28, 176-8 and 562
[3] DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004