The EU’s potential lifeline for Mrs May’s Brexit

The European Union (EU’s) Brexit negotiators from Mr Barnier (chief negotiator) downwards must have long since realised that Mrs May, Mr Davis and the Department for (not) Exiting the European Union are incapable of serious negotiations. Meaningful progress towards leaving the EU in an orderly way including suitable agreements, arrangements and infrastructure is practically non-existent; there is a mountain of detail yet to climb. What, then, can the EU do to rescue the process and Mrs May, since Mr Barnier has previously stated on more than one occasion that he can’t negotiate with himself?

The view from Brussels must be of a weak prime minister leading a fractious, divided party and government, who has a poor grasp of detail and instead relies on spin, wishful thinking and dithering.  Even the output from the Department for (not) Exiting the European Union is poor and vague to the extent of being practically useless. Their website, where comprehensive information and practical guidance on Brexit, and hyperlinks to further sources of information should be available, is more of a case study in superficiality, grandstanding and self-aggrandisement.  There is not even a link to the European Commission’s website on Brexit preparedness.  So whose job is it to help prepare the UK for Mrs May’s decision to leave the Single Market and – by extension – the European Economic Area, EEA?

By contrast, the output from the European Commission, setting out its increasingly uncompromising position, is clear, focused and comprehensive.  Right from the beginning, the EU has been making the running.  Its dedicated website illustrates the impressive (or terrifying) detail of their ‘public’ vision of where Mrs May and Mr Davis’s Brexit is heading and the implications, which appear to look like ‘falling off a cliff edge’ to many UK businesses.  Its advice to stakeholders (available here) repeatedly spell out, in as much detail as possible, what will undoubtedly happen across a wide range of activities and policy areas when the UK becomes a ‘third’ country after leaving the EU (on 29th March 2019) and the EEA.  It is quite likely EU officials often frustratingly ponder the question, “Do our British counterparts and their political leaders understand any of this, and do they actually care what it all means?”  The problem for our team of negotiators is that they do not seem to know and understand EU laws and regulations, their rationale and implementation. This is essential if they are to develop appropriate strategies, negotiating positions and challenges to the EU’s tough, logical and systematic stance.

From the EU’s perspective they have helpfully agreed to a transition period limited to 21 months which is necessary to give Mrs May time to negotiate a free trade agreement. In reality, much longer is probably needed. However, the EU’s terms for this transition period  – which have still not been agreed – would be very unpopular in the UK and thus may never be accepted given Mrs May’s weak position in Parliament.  The EU’s terms would make the UK into a temporary or maybe even permanent EU Vassal State where Brexit means Brexit in name only.  Crashing out of the EU without transition arrangements and not having any form of mitigation of the consequences of ‘third’ country status (the “cliff edge”, in other words) is becoming increasingly likely.

The European Commission is well aware of political developments in the UK and of the consequences of no deal scenarios (given the detail on their website). Its negotiators also have to confront the contradictions in Mrs May’s position.  Frictionless trade (as required by Mrs May and Mr Davis) is not possible as a ‘third’ country outside the Single Market (and the EEA).  Time is running out for businesses both here and in the remaining 27 Member States of the EU to adjust.  Time is also impractically short to put in place new facilities and legislative frameworks needed by a ‘third’ country such as border inspection points, designated entry points and the recruitment and training of staff.  What can the EU do, if it is so disposed or there is some behind-the-scenes collusion going on, to extend Mrs May a lifeline and avoid the ‘cliff edge’?

Any EU-sponsored lifeline needs to protect their interests. It has to operate within the EU’s objectives, legal framework, and established practices. It mustn’t ‘rock their boat’ or set any potentially disadvantageous precedent. It also needs to be sellable across a wide range of opinion in the UK, addressing as far as possible rational fears and aspirations.

The only viable option for an EU-sponsored lifeline is to facilitate the UK re-joining the European Free Trade Association (EFTA) and use this as a basis for retaining membership of the EEA for at least the transition period. It appears that the European Commission may be seriously evaluating the EFTA/EEA route for transitional arrangements for the UK,  as noted by an EFTA Court judge (Mr Carl Baudenbacher) giving evidence to the Commons Committee for Exiting the EU on 7th February 2018 and reported in the Telegraph on-line.

The EFTA/EEA option is not perfect, but as a holding position while something better is negotiated, it is much better than the transitional deal currently on offer. Hard Brexiteers could be won over by the facility to control immigration through unilaterally invoking Article 112 (the Safeguard Measures) of the EEA Agreement.  Further, the EFTA route to EEA membership gives members outside the EU a say in EU legislation affecting the EEA, is largely free (although ‘voluntarily’ Norway does contribute to regional development funds) and is outside the jurisdiction of the European Court of Justice (ECJ). The EEA Acquis or body of law is about a quarter of the total EU Acquis since it only relates to successful functioning of the EEA  in other words, issues relating to trade. And EFTA members can make their own trade agreements with other countries.  Membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland.  It also gives us full control of fishing in our Exclusive Economic Zone.  Those worried about the economic effects of the ‘cliff edge’ could be won over because the EFTA/EEA option prevents this allowing practically frictionless trade to continue. The EEA agreement (for EFTA members) can be adapted to suit their interests.  Thus the UK (within EFTA) could get a customised version.

We cannot know what the European Commission is covertly doing and how far its efforts, if any, have progressed to save Mrs May, the UK and the EU from her folly.  However, given the efforts it has visibly extended to help enterprises both here and in the 27 remaining Member States to understand and adapt to the implications if Mrs May does not change her decision to leave the Single Market, nobody knows better the potential disaster she is determined to inflict and how it can be avoided.

Photo by thaddselden

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13 comments

  1. Jason BReply

    Well said. They are becoming stuck further and further down the cul-de-sac. Pride must take a sacrifice and a new leader with gravitas and intelligence to take the reins with the probability of taking up, somewhat belatedly, the New Zealand offer of negotiating assistance to prove we are serious. Have we a suitable leader waiting in the wings and who could it be?

    • StevenReply

      More like Mother Mayhem/Maybe! Yes, this REMAINER with her heart simply not in the task and totally out of her depth (her utterly disastrous stewardship of the Home Office which was even worse than people like Jack Straw and David Blunkett should have alerted the ever stupid Tory Party to this fact) must go and be replaced by someone who actually DOES want to leave the EU.

  2. Simon BlanchardReply

    I disagree profoundly with the option to go into EFTA/EEA membership on a “holding position” unless it has a sunset clause that can’t be renewed built into the treaty of no longer than 2 years. Five years is too long and longer than any UK parliamentary term of office.
    Otherwise we will find out this holding position will be set in CONCRETE as happened to Norway in 1994. They voted No in their EU referendum, but the government kept them in the EEA after they signed them up in 1992.

  3. StevenReply

    Indeed, Simon Blanchard. The fact is the political Establishment would use such an outcome to keep Britain emeshed in that arrangement for as long as they can so they could find a way of getting our country back into the EU subsequently. We voted to LEAVE the EU and ALL of its various mechanisms including constant mass immigration, the Single Market (and the connected non ability of British governments to restrict the export of capital abroad) etc. We DIDN’T VOTE for a ‘half-way’ house of not being a fully sovereign country! There WILL be a ‘cliff edge’ as was inevitable but then businesses should have been preparing themselves for this since the vote was revealed on June 24th 2016. If certain businesses are squealing about this it just shows how incompetently they are run and it is no wonder our business people never made a success out of our membership of the EU and the Single Market – one reason I would have voted against Mrs Thatcher’s stupid idea of creating this if we had had a referendum over it as even the Republic of Ireland had!

  4. Jason BReply

    The ideology of Brussels is, that they will be the Head and we members will be the tail. By stealth the net was getting tighter over the control of all our affairs. We initially dug our own hole and as Nigel Moore ably explains, a way, although not the perfect way to ease ourselves out is still within reach. Alas, Mrs May and her team have wasted valuable time and money in trying otherwise. I wonder how many Conservative MP’s are beginning to feel very disquiet and are preparing for a party rump?

  5. Phil JonesReply

    I couldn’t agree less with Nigel Moore. No way for EFTA for the UK.

    Simon and Steven, 100% agreement. EFTA (with or without EEA) is not a vialbe option for the UK. Nigel Moore and others go on and on about the wonders of EFTA. In fact EFTA means that the UK keeps free movement. If it were possible to sign on to EFTA for the very brief transition period perhaps it would be an option. But as the Swiss and Norwegians learned, you sign on and you’re stuck in it. EFTA is a semi-political solution, leaving the UK as half-in, half-out of the EU. What Brexit meant to me and most others was that the UK completely leaves the EU politically but tries to reach a future trade agreement with the EU in the same way as any third country.

    I have no idea what Nigel Moore does for a living but he’s obviously involved in business in some way and wants in effect to keep the UK tied to the EU politically to some extent in order to avoid any business adjustment whatsoever. Can we please separate out (1) the total political separation of the UK from the EU, from (2) a trade agreement (if possible) between the UK and EU after the political separation. What EFTA represents is to muddle (1) and (2), with a trade agreement involving the UK continuing in a political arrangement with the EU. In other words, the UK changing from an EU province to an EU quasi-province. I AM DEAD AGAINST THIS. Only those obsessed with obtaining a trade agreement at all costs, such as Mr. North and Christopher Booker and others, keep rattling on about EFTA (also subsequently possibly EEA — you have to be in EFTA or a Member State to be in the EEA).

    Anybody who wants to see the current state of a relationship of a nation in the EFTA with the EU need look no further than Switzerland. Switzerland has not subsquently joined the EEA. Norway joined the EFTA, then the EEA. Anyway, for those following the present bitterness between Switzerland and the EU, it stems from the Swiss people not wanting the EFTA’s free movement but Swiss business wanting the bilateral EU trade agreements that come with EFTA. Switzerland is in upheaval over the situation. Many Swiss people want a referendum on leaving the EFTA but the Swiss Goverment is in the pocket of Swiss business and not wanting to give such referendum. It’s turning even nastier as Juncker is now telling the Swiss that the bilateral trade agreements have to be turned into a Swiss-EU treaty on trade. And Switzerland gets pulled deeper and deeper into the European Experiment. Is that what we want for the UK?! It’s not what I voted for. No more free movement, no more Single Market, no more Customs Union, no more ECJ, no more a part of the EU. A trade agreement is fine, if possible, but not one involving staying politically in the EU such as with the EFTA.

  6. Phil JonesReply

    As a P.S. to my last comment, I’d just add that at this point I think Mrs. May and Mr. Davis are doing a fine job and the best job possible. Mrs. May has ruled out EFTA as an option. As long as she stays on her present course I think we’ll be just fine. The EU needs us more than we need it. If the EU in the end doesn’t want to reach a new trade agreement fair to both sides, then we walk. And it wouldn’t be the ‘cliff-edge’ of Project Fear II that business is constantly whining.. It would be a ‘doorstep’ where we step down to a bright new future trading on the world stage..

  7. Elizabeth McNabReply

    I totally agree with Phil Jones. Over 17 Million people voted to Leave the EU. What is it that the Remainers do not understand when the majority voted pure and simple to LEAVE. I am not in favour of any transition in order to negotiate an Agreement. Big Business, Big Banks and the EU Commissars have been given due notice by the British people that Britain will be leaving the EU. Given the 2 years notice whereby we are not allowed to make any Trading Agreements with the rest of the world, we are basically in Limbo. In order to get any proper agreement with the EU, we will have to walk away without one and if they wish to negotiate a Trading Agreement, they can join the queue and wait in turn while we deal with other countries who wish to trade with us. While we are still attached to this Political Union, we are not really free to negotiate a good deal with the EU as we are still tied and trapped in the EU political dogma. Our Democracy is also at stake should the powers that be do not carry out the will of the majority who voted to Leave the EU. Considering that 98% of our MP’s failed to read or understand the EU Treaties which they voted for to join the EU, they now have the audacity to hinder the will of the people, who voted to exit the EU. Negotiate a Trade Deal after we have left and no money should be handed over. As for the Border in Ireland, If the EU want a Hard Border, then that will be up to them considering they cannot stop the smugglers who are already shifting goods over the Irish Border.

  8. Gordon WebsterReply

    Why would Barnier bother to negotiate, with two people who are on his side. They didn’t negotiate with Heath, they simply told him how much membership would cost.
    THe Union Barons of old taught us how to negotiate from a position of strength. Make your pitch,get your ballot sorted, then walk out if it is refused. WE owe the EU nothing, so have no need to negotiate anything.

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