White Paper Whitewash

Dramatic events after the Chequers cabinet meeting. A government in chaos with 8 months before Brexit. What is going on?

The White Paper on the future UK-EU relationship has united Remainers and Leavers against it. There’s no point reviewing a work that’s already scrap.

However Britain and the EU only need to agree a non-binding declaration on this. The real battle is over the 80% ready Withdrawal Agreement (WA).

The BBC’s new Europe Editor, Katya Adler, has proved to be objective, fair and switched on over some key issues.

Adler predicts that much negotiation work will be needed after Brexit! We cannot agree a new free trade deal until we’ve left and become “a third country” (e.g.). The Lisbon Treaty has produced an uneven playing field that means that the trading relationship will have to be a continuation of the EEA Agreement (“Single Market”) or falling back onto WTO-only rules.

A trade minister confirmed intentions to stay in the EEA until 2021. However the EU (Withdrawal) Act (EUWA) will repeal the legislation for this on 29 Mar unless Brexit is stopped or a new EU Withdrawal and Implementation Act (EUWAIA) is agreed.in Parliament, reflecting whatever WA deal is made.

If Britain and the EU cannot both ratify a deal, the only alternative to WTO-rules only is for both sides to request a dispensation (WTO Waiver) to allow current trading terms to continue.

This would help keep trade flowing on Single Market lines, but require Britain and the EU then having a working agreement, including a clear plan for a Free Trade Agreement (FTA)

Monmouth MP David TC Davies rues that there seems no Parliamentary majority for any one kind of Brexit.

Labour’s “Six Tests” would mean opposing any deal that wasn’t a close match to EU membership. Jeremy Corbyn seeks to exploit any defeat on the government to bring about a General Election. Deputy leader Tom Watson won’t rule out a second referendum. The New Statesman adds that a petition needed only 1400 more names for Labour to debate making this party policy!

At the same time we must ask if a Withdrawal Agreement  deal was agreed to the EU’s liking, would pro-EU Labour really scupper it? With UKIP reviving, would Labour seek to fight an election as the party that ignored many of its voters and stopped Brexit (even temporarily)?

European leaders are having jitters. Austria’s Sebastian Kurz, leading the EU until December, is hot on avoiding hard Brexit. Adler notes that many in the EU don’t want Brexit. (This could in theory lead to delaying Brexit for continuing negotiations, which, if repeated indefinitely, would block it.)

However Adler senses an EU feeling “Brexit must be done in time”, but with a perception that our government tends to make a fuss then just cave in. EU negotiator Michel Barnier has been pushing Britain to remain in the Single Market and Customs Union.

Whereas Barnier’s assistant Stefaan de Rynck hinted that Britain would duly get a FTA, Berlin Foreign Policy journalist Dave Keating warned that “Transition is likely to be permanent”.

Even if a British government preferred to end “vassal status” in 2021, a FTA could take a good 5 or 6 years to agree, according to former WTO head Pascal Lamy. (This could be reduced if parts of the existing EEA Agreement were carried forward.)

The EU would also have to be willing to offer us a more flexible trading deal and could simply say “Take it or leave it – and lose trading rights”.

However, time can be a healer, and with the ghosts of Brexit exorcised, the EU might realise there’s an opportunity to deepen trade with its largest trading partner? The EU is supposed to back a WTO holy grail of multi-lateral free trade – a single global FTA covering substantially all goods and services. It won’t happen overnight, but a Deep and Comprehensive Free Trade Agreement (DCFTA) with Britain would provide a ready model towards freeing up trade for other partners?

Another option is an Association Agreement (AA). Guy Verhofstadt, a Belgian liberal MEP, has proposed one for Britain. The Lisbon Treaty already provides for an AA for countries with a “special relationship, with “the same treatment” (i.e. privileges) on trade? However, there is more flexibility – a proposed new AA for Chile wouldn’t involve payments to the EU, free movement or being under the ECJ, yet could cover most goods and services.

This article first appeared in Brian Mooney’s Resistance newsletter and is reproduced with permission

A letter from one of our members to his MP

A LETTER FROM ONE OF OUR MEMBERS TO HIS MP

after a visit 22 July 2018

Hi!

Thanks for seeing me again on Friday – here is my summary of our meeting for you to consider.

I covered three main points:-

First. I asked you for an update on how you felt things were going . You seemed slightly surprised I keep asking this but it is the only way I have of knowing how aware you are of the disaster looming before us. You acknowledged there are difficulties but felt Mrs May would get there in the end. I pointed out how her proposals to the EU for “frictionless” trade would not be accepted as they still were trying to have our cake and eat it. I again point out how Efta/EEA resolves all the critical issues we face while still freeing us from the EU’s politics and would allow us to act independently on the world stage again.

Second. I asked you if in any dispute or negotiations it was essential to hear from both sides. After I gave you the example of a divorce you said of course it was.

So Third, I asked you what you knew if anything of the Notices to Stakeholders of which 68 have been issued . You replied that you didn’t know what they were. I then explained they were issued by the EU to alert and address the problems for businesses if they are to face a No Deal or Hard Brexit. I then gave you the latest publication from the EU, including COM (2018), its press release and seven point fact sheet to consider. You said you would read them . I believe it is essential that you do.

In parting you said that you could see no likelihood of an election before 2022 and that unlike Johnson or Davis you supported the PM and would not be resigning. Finally I urged you to contact that MP whom I mentioned, urging you to engage with him and influence Mrs. May towards an Efta/EEA style deal.

I would like to meet you again after the 18th October EU Summit and speak to you as soon as possible after this defining Brexit event.”

…………………………………………………………………………………………………….

Now people may agree or disagree with the points made here but nobody can feel happy that any MP could be so unaware of the conditions in the EU notices which are certain to affect his constituents’ businesses.

Confusion and chaos

The Conservative MP Sir Nicholas Soames said recently that he didn’t think that in all his 35 years as an MP he had “ever known such a truly unpleasant and deeply uncertain time in the house” following the publication of the Government’s Brexit white paper. Michael Fabricant, the author of the hyperlinked piece, claimed that Sir Nicholas’ memory is playing tricks on him and that the battles over  the Maastricht Treaty were worse.  My colleague Robert Oulds from the Bruges Group agrees – threats of both physical violence and blackmail were used by the whips of John Major’s government. We haven’t quite got to that point – yet.

Even so, the atmosphere in Parliament is one of confusion and chaos. “We really don’t know what is going on” said one MP.  He is not the only one. A spate of ministerial resignations has been followed by the submission of a letter by Philip Davies, the MP, to the Prime Minister stating that he has “lost trust” in her ability to deliver the EU referendum result.

Mrs May is likely to cling on until the recess next Tuesday, unless firm evidence can be found which will confirm that the current impasse is something she has created deliberately and that she doesn’t want us to achieve a successful break from the EU.  Her unsuccessful attempt to bring the recess forward was defeated by MPs – and unsuprisingly, as it gave the impression of a Prime Minister wanting to run away.  Even if she does make it to next Tuesday, however, it is going to be a torrid time and Tory MPs can expect no respite when they return to their constituencies. Locals activists are incensed over what they see as a sell-out.

So what might happen? It would be a brave man to predict the outcome. Essentially, there are four possibilities: firstly, Mrs May manages to achieve a nominal Brexit based on something like the Chequers plan, but no doubt with a few more concessions thrown in. Secondly, the government falls and a general election is called. Thirdly, a second referendum may be offered to the people. Fourthly, Mrs May is ousted and a new Brexit strategy is devised by a new team.

Of the four options, the first would destroy the Conservative Party at the polls and could cause a split within the party itself. Given that the European Research group of Tory MPs led by Jacob Rees-Mogg has stated that it will vote against it, such an outcome would only be possible by relying on the Labour, Lib Dem and Scottish Nationalist parties. Labour is in a serious mess itself. Besides the deepening divisions within the party over antisemitism allegations, the party is disunited over Brexit. A minority of MPs support Brexit. Some, such as Chuka Umunna, see stopping Brexit as their main priority whereas the Corbynites are much more interested in seeing a general election called.

It is the fear of Jeremy Corbyn ending up in No. 10 which Mrs May’s team is using as a weapon against dissidents on both sides of her party. The effectiveness of this argument is questionable. However disunited the Tories may be over Brexit, the last thing any of them want is another General Election, not to mention that the Brexit clock would continue to tick during the campaign period, as it did during last year’s election. This is in no one’s interests.

A second referendum was recently proposed by Justine Greening, suggesting three options be put to the electorate – accept the Chequers deal, leave without a deal or abandon Brexit and stay in the EU.  The proposal was dismissed by Mrs May, although it is by no means an impossibility. There are nonetheless several reasons why it is unlikely. Firstly, it reflects very badly on Parliament. In effect, MPs would be saying “You gave us a mandate. We can’t deliver it so we’re throwing it back in your court.” Such a move would undermine the very authority of Parliament, although the Conservatives, as the party of government, would be the biggest losers electorally. Secondly, it would be cruel. There is no groundswell among the general public for another referendum. The message MPs have been receiving from their constituents has been simple  – “just get on with it.” Unlike the 2016 referendum, it isn’t wanted and what is more, it would reopen wounds which have largely been healed. Given the febrile atmosphere in Parliament, a second referendum would be fought in a terribly heated, bitter atmosphere which would tear communities and families apart. No sane MP could possibly want to inflict such pain on their fellow countrymen. There is also once again the ticking clock. The necessary legislation would have to complete its passage through Parliament and then a decent amount of time would need to be set aside for a serious campaign. With Brexit Day only just over eight months away, there just isn’t long enough.  Furthermore, why just these three options? There are others, including EFTA, which have some support.

So the most likely option is a new Brexit strategy. Time is short and would be shortened further by the time taken up with the inevitable leadership contest. Joining EFTA next March to give us a breathing space wouldn’t satisfy everyone, including some regular readers of this blog, but other options are running out. Even if a WTO-type exit were feasible (which some of us doubt), it would need time to prepare for it and that time just isn’t available. It also wouldn’t command a majority in Parliament. Joining the EEC was a complex business too; the government gave clear, detailed advice to business for over a year beforehand to ensure a smooth transition. There is no reason to suppose that the task  of disentangling the accumulated complexities through  Brexit would be any less.

Two years have been wasted. We are not going to achieve the Brexit we hoped for. Given the present chaos, if we achieve a smooth but genuine Brexit via the EFTA route, leaving some unfinished business for the period after March 2019, (such as negotiating a looser long-term relationship), most supporters of leaving the EU could heave a guarded sigh of relief.

Photo by Free-Photos (Pixabay)

 

Brexit White Paper July 2018 fails to deliver frictionless trade

Unworkable, risky wishful thinking on frictionless Single Market trade

The Government’s recent White Paper entitled The Future Relationship between the United Kingdom and the European Union is unworkable, risky wishful thinking as far as frictionless trade with the Single Market (and wider European Economic Area, EEA) is concerned. The White Paper also fails to take cognisance of how the European Union (EU) and Single Market functions, and its direction of travel, which makes it unlikely that the EU can accept it. If the EU did accept these insubstantial, ‘cherry picking’ proposals, businesses and regulatory authorities, etc. would struggle to make them work.

This short examination does not consider Facilitated Customs Arrangements etc. It is difficult to work out exactly what is being proposed and how it will operate. However, it appears to be unproven and to increase the complexity and costs of importing and exporting goods and services.

Vague unreality without any practical solutions

A major shortcoming of the White Paper is the lack of detail.  It is unclear what the various terms used and their proposals actually mean in practice, what they cover and what they omit. There is also no recognition of any problems or limiting issues that need to be addressed, and no consideration of timescales or resources needed to turn the theory into reality.  Important terms not explained include: goods, services, Common Rulebook, Free Trade Area for goods, approvals and authorisations, ‘sit alongside’, ‘open and fair’ and ‘participation in EU agencies’.  These are critical to understanding and avoiding impracticalities, ambiguities, arguments (with the EU) and confusion.

Whilst goods and services are to be treated differently, there is no analysis about how they can be separated, which could often be very impractical.  The only example of a product, vaguely and briefly considered, is mutual recognition of type approval of motor vehicles, which is itself unlikely to be acceptable to the EU.

The EU’s legal basis for Frictionless Trade in Goods is ignored

The White Paper’s aspiration is for frictionless access for goods – a free trade area part in and part outside the Single Market. There would then be one set of approvals and authorisations for goods to be sold in both markets (UK and Single Market). How this will work is unclear given that EU Directives (the EU Acquis) relating to the Single Market governs how it functions.

The EU’s direction of travel (for the Single Market), is towards harmonised standards, regulations, and enforcement or surveillance through a top-down centralised legalistic and bureaucratic framework. This gives the European Commission and agencies ultimate control inside the Single Market.  This is the basis for frictionless trade. The European Free Trade Association (EFTA) incorporates relevant EU Directives into their own body of EFTA/EEA law in order for them to participate in the wider EEA.

Generally there are no deviations from the EU Directives except those permitted within the existing legal regulatory framework.  Any change must be incorporated into EU law first.  Countries outside the Single Market (and wider EEA) are ‘third’ countries effectively outside EU control or surveillance necessitating appropriate measures regarding imports.  The White Paper effectively ignores this and assumes the EU will agree to the changes and the UK exceptionalism being proposed.

The EU’s Directives for Products are ignored

The White Paper does not mention any actual EU/EEA legislation and how it will be affected, nor does it discuss practicalities. There is also no acknowledgement of the EU’s position on trade in goods with ‘third’ countries.  The EU’s legally mandated arrangements to control diseases and parasites etc. in imported livestock, products, plants, packaging etc. from ‘third’ countries are largely glossed over.

Note:    EU’s approach (to products) is outlined in principle in COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Enhancing the Implementation of the New Approach Directives , in more detail in the EU’s Guide to the implementation of directives based on the New Approach and the Global Approach and encapsulated in EU law in REGULATION (EC) No 765/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93. The EU has also recently spelt out its position, which is consistent with their New and Global Approach Directives, in Notice to stakeholders withdrawal of the United Kingdom and EU rules in the field of industrial products.   The adverse effect of Mrs May’s Brexit on a frequently essential part of this product jigsaw (the work of Notified Bodies for mandatory conformity assessment of products) is explained here.

According to EU law, products of animal origin (meat and meat products) imported into the EU must be inspected (sanitary checks) at Border Inspection Posts (BIPs). For products of plant origin (for plants and plant-derived foods) phytosanitary checks are required at Community Entry Points (CEPs, Designated Points of Entry, DPE).

The White Paper adds a new level of complexity to the Single Market and EEA

The White Paper’s advocacy of regulatory alignment and mutual recognition adds further complexity.  It would inevitably require considerable amendment to existing EU Directives covering a wide range of products and associated production, regulatory and conformity assessment and market surveillance. This is far from straightforward or quick given that requirements are effectively intertwined; change one here and there can be a knock-on effect elsewhere. Then there is the creation of new precedents that produce anomalies elsewhere and situations that can be exploited by others to gain an unfair or unreasonable advantage.

Also, more errors and anomalies are likely to occur when time is short to develop revised legislation, standards, conformity assessments, accreditations and market surveillance processes etc. Obviously it is far from certain that the EU will agree to this in any instances.  If it did, this would impose new uncertainties and risks where before matters were fairly settled and predictable.

No Go Chaos for Nobos and their Conformity Assessments of Products

Notified Bodies need accreditation for carrying out mandatory independent conformity assessment on a wide range of products to be placed on the market in the EEA. They need separate accreditation (Designated Body, Debo) when carrying out assessments relating to national specific or special cases covered by EU/EEA legislation.  The White Paper proposes a Common Rulebook (harmonisation with EU rules) applying to goods to be exported to the Single Market but not to services.  Clearly the work of Nobos and Debos are services falling outside any compliance with the EU Rulebook whatever that vague term is supposed to mean in this context; for example, EU Directives with or with European specifications, mandatory conformity assessment, market surveillance etc.

Under the White Paper’s proposals, a new product could be assessed by a Debo and then exported to the EEA where the Debo’s accreditation and product conformity assessment is currently not recognised. Obtaining this recognition raises a host of practical problems, such as who gives the Debo accreditation, how is the Debo assessed, who keeps the register of accredited Debos and test houses, and what should the Debo now include in its product conformity assessment and certification?  Where an existing product undergoes a material change requiring further or updated assessment, more difficulties will inevitably result in determining whether this is Debo or Nobo work or a combination and who does what.  This complexity and vagueness needs to be resolved or a wide range of UK goods would become non-compliant and could not be exported to the EEA.

The Practical Alternative

Mrs May’s Government is proposing an unworkable Brexit in name only. However, instead it could have opted for a workable real Brexit by remaining temporarily in the Single Market (or wider European Economic Area, EEA) under much more favourable and flexible conditions by re-joining the European Free Trade Association (EFTA). (Further information see The EFTA/EEA Solution to the Current Brexit Impasse, Brexit Reset, Eureferendum.com, various posts on Campaign for an Independent Britain and affiliates )

The Devil is in the Missing Detail

So far there is little indication that the UK’s negotiators actually understand much, if anything, about the minutiae of the EU Directives and how the EU/EEA functions.  Even if the EU agreed to this White Paper (and this is a very  big ‘If’), the resulting outcome is most likely to be more, largely avoidable confusion all round carrying on for years among customers, suppliers, regulators, conformity assessors (e.g. Notified Bodies) and organisations involved in market surveillance.  The frequent questions would be “Where do we find the requirements?”, “Must we comply with this requirement?”, “What does this requirement actually mean?”, and “How much is this going to cost us?”

In short, the whole document is seriously deficient and likely to be rejected by the EU.

Report from Glasgow

Having travelled up to visit relatives who were not well, it was a surprise to find that the ORANGE WALK had been routed past our hotel, so we heard many, many flute and accordion bands, from Scotland, England and Northern Ireland – drums under the window – the rattle of the drums and the deep booming thud of the bass drums against the shrill flutes – on their way to Bellahouston Park where their leaders were to demand that the SNP Scottish government should STOP TRYING TO OVERTURN THE REFERENDUM which  resulted in a vote for Scotland to remain part of the UK.

 “The best-laid schemes of mice and men gang aft agley” – Robert Burns

I reflected how the Labour planners of devolution had congratulated themselves that their scheme was ingeniously clever. It gave so much power to the Scottish Parliament that it would surely take the wind from the nationalist sails and the electoral system was such that no single party would ever be able to command a majority. They were wrong on both counts!

Flute bands are a bit samey and I lost count of them. We had been told to expect twenty six but press reports said there were over sixty. Tunes varied from “When the Saints Go Marching In” and “Onward Christian Soldiers” to the more traditional Irish tunes, including the oft-repeated strains of “The Sash” with which I had become familiar on other occasions-

“Sure it’s old but it is beautiful and its colours they are fine.

It was worn at Derry, Aughrim, Enniskillen and the Boyne.

My father wore it when a youth in bygone days of yore,

And on the Twelfth I’ll always wear the sash my father wore”.

Many of the Scottish and English bands would be with their Northern Ireland brethren on that day. Brethren and sisters too. Ladies were playing in many of the bands. Lodges were often headed not just by a drum major but by a young person carrying an open bible, ahead of the lodge banner and other colours – a symbol of the sole claimed source of authority, freely available to all without the intervention of a church hierarchy.

It was a sweltering day. We decided to seek a quieter quarter of the town. If there was going to be any trouble, it would be when the lodges returned from their meeting in the park, having drunk deep. I believe there were four arrests that day which, considering the thousands of marchers and spectators, was insignificant.

So we adjourned to a quiet bar parlour where the television was showing the England v Sweden football match. Not being a sporting enthusiast, I had not watched a match from start to finish before. I found the skill quite gripping. The crowd in the pub was certainly not anti-English, cheering the English goals scored and getting equally excited when Sweden came close.

It’s never difficult to distinguish between a Scotsman with a grievance and a ray of sunshine” – P.G. Wodehouse

As a (small u) unionist I sometimes get fed up with the incessant aggressive whingeing tone of Scottish and other nationalists but find this site to be frequently businesslike and objective. The distance between the author, James Kelly, and his subject, Theresa May has lent an accurate perspective and sharp focus to the author’s view. His latest post is reproduced in full.

The Brexit Delusion over who calls the shots

I don’t know about anyone else but I’ve been rubbing my eyes in disbelief over the last few hours. If you’ve been listening to the mainstream media’s verdict about what was agreed a Chequers, you’d be forgiven for thinking that the fabled Brexit deal that Theresa May has been tasked with striking needed only to be a deal with the rest of her own cabinet, and not with the European Union. By that rather lower standard, what has just happened might be seen as a stunning personal triumph for the Prime Minister and a guarantee of a (somewhat) softer Brexit, exactly as Stormfront Life is claiming tonight. The agreement will only be subject to a few modifications if Brussels raises any objections, reveals The Guardian, which apparently believes that the EU has only a limited consultative role in the whole process.. It’s the old imperial delusion – decisions are things that happen in London. The same commentators who complacently tell us that an indyref is a non-starter because Theresa May will say “no” also apparently believe that it’s a mere point of trivia that the EU have already ruled out many elements of May’s Brexit proposal. Back in the real world, without the EU’s assent there is no deal at all, and that would mean the hardest of hard Brexits.

A rare injection of realism was provided by Sam Coates of The Times, who acknowledged that the EU may well still insist on a straight choice between a looser Canada-type deal and the Norway model that would entail the retention of the single market. But he argued that the Chequers proposal was about 80% of the way towards the Norway model, thus making it that much easier for the Prime Minister to jump towards Norway if forced to choose. What he didn’t expand on is the consequence of such a decision. It’s highly debatable whether the government really are now 80% of the way towards Norway, but even assuming for the sake of argument that they are, the reason they haven’t travelled the remaining 20% of the distance is that doing so would completely breach the red lines on formally leaving the single market and ending freedom of movement. Some may say that a Soft Brexit is inevitable because there is a natural parliamentary majority for it – but that majority is cross-party in nature and neither the government nor the Prime Minister are sustained in office on a cross-party basis. I find it in conceivable that a Tory government led by Theresa May could keep Britain in the European Economic Area or retain freedom of movement, even if they wanted to.

And if that proves correct, there are really only four alternatives –

  1. The EU backs down and accepts British cherry-picking of the most desirable aspects of the single market and customs union. This is almost unimaginable because it would create a precedent that Eurosceptics in other countries would try to follow, thus risking the unravelling of the EU.
  2. A Canada-type deal is negotiated after all. This is possible but it would require turning the super-tanker around, because it’s clearly not close to what Theresa May has in mind at the moment. It would mean a very hard Brexit in any case.
  3. There is no deal at all
  4. The Prime Minister’s failure to strike a deal (or a deal that is consistent with her red lines) triggers a political crisis that results in a change of leadership and/or a general election.

I can recall at least two previous occasions when we’ve been told that the PM has made a decisive move towards a soft Brexit, only for us to realise weeks later that there had been no change of any real significance. I fully expect the same to prove true on this occasion. “

(My emphasis because I remember exactly the same thing – Edward)

What is the truth of freedom of movement?

Whilst it is often stated that Freedom of Movement is a non-negotiable and a fundamental indivisible principle of the Single Market, the truth is actually far more complex.  The ‘four freedoms’ are not indivisible for countries outside the EU, such as those who are members of the European Economic Area, (EEA).

Furthermore, the EU has made provision in legally binding and proposed agreements unilaterally to control freedom of movement along with the other freedoms of the Single Market.  The UK could do the same if it remained a member of the Single Market (and wider European Economic Area, EEA) by re-joining The European Free Trade Association (EFTA).  The same actually applies to the EU’s proposed draft text to the Withdrawal Agreement.  Thus Mrs May and her government are, at least in this regard, determined to pursue a Brexit strategy (Brexit in name only) which is far worse than what is actually available utilizing existing established agreements.

The EEA Agreement governs the Single Market (and wider EEA)

The operation of the Single Market (and wider EEA) is set by the EEA Agreement, to which all Member States of the EU and EFTA (excluding Switzerland) are signatories. For the EFTA/EEA members, the EEA Agreement is amended by the addition of Annexes and Protocols.  Thus the EFTA countries have bespoke variations on the basic EEA Agreement. EFTA countries also have greater flexibility since powers retained by individual EFTA countries have often been removed from the individual Member States of the EU and transferred to the European Commission or its agencies (acting for the whole EU).  Consequently EU Member States often find they cannot act unilaterally, whilst individual EFTA countries can do so and they make use of this freedom to serve their interests.

Within the EEA Agreement Freedom of Movement is Unilaterally Controllable

The Single Market (and wider EEA), has free movement of goods, persons, services and capital as basic principles. However, the EEA Agreement also includes an opt-out which can be applied unilaterally by EFTA countries (see Chapter 4, Safeguard Provisions, Article 112), but obviously not by Members States of the EU.  It states:

Safeguard Provisions, Article 112

  1. 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.
  2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.
  3. The safeguard measures shall apply with regard to all Contracting Parties.

This opt-out is intended to be “temporary” (until a permanent solution is implemented), but nevertheless can be invoked and maintained in the absence of that permanent solution.  It has already been used by Liechtenstein to control immigration and Iceland to control capital flows in the wake of the financial crisis.

The EU’s Ability to Unilaterally Control Freedom of Movement

So useful and/or essential does the EU regard Articles 112 and 114 of the EEA Agreement that, rather than them being toothless window-dressing, it chose to include them virtually unchanged in its draft Withdrawal Agreement, Article 13 (Protocols NI) which states:

Article 13 Safeguards

  1. If the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, the Union or the United Kingdom may unilaterally take appropriate measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
  2. If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.

The EU is intentionally ensuring, whether the UK is in the EEA or not, that the EU can unilaterally restrict immigration into the remaining Member States from the UK. The EU is also agreeing here that the UK can unilaterally restrict immigration from the remaining Member States into the UK.

Implementing the Safeguard Measures Immediately

In the UK, there are permanent economic, infrastructural and societal factors which would justify implementing the existing Safeguard Measures immediately, as of 29th March 2019, when we supposedly leave the EU whilst de facto remaining within the Single Market.  Subsequently it would be prudent to negotiate the introduction of specific clauses to enshrine a right to permanent or longer term control.

Why the untruths about Free Movement?

The kindest explanation as to why Freedom of Movement is misrepresented is that many politicians are actually being economical with the truth, and are avoiding the fuller picture which contradicts their claims.  They may also fail to understand the subtleties of that fuller picture.   This is somewhat obvious in Mrs May’s Lancaster House speech 17th January 2017 where she appears to have accepted some very disingenuous claims about free movement. Here are her words:

But I want to be clear. What I am proposing cannot mean membership of the single market.

European leaders have said many times that membership means accepting the ‘4 freedoms’ of goods, capital, services and people. And being out of the EU but a member of the single market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.

Mrs May also appears to fail to understand how the EU and EEA works, including the subordination of the European Court of Justice. These are explained in more detail here with links to further information.

The great tragedy of missed opportunity

This country desperately needs the powers to choose who we should let in and under what circumstances. This was one of the loudest great messages from the Brexit Referendum result. Voters want us to be able to control our borders. To repeat, that power of control is there in legal texts. It could have been grasped by Mrs May and her colleagues in government if they had chosen to do so.   They have chosen – at least up to now – instead a path of uncertainty, cave-ins to the EU and potential chaos.  It is a price the British people should not have to bear.