Wednesday, 1 November 2017

Brexit Briefing - How much EU law ?

As discussed in my previous post, I will be writing a series of blogs examining the claims made for the Single Market and explaining my thoughts on the Norway/Flexcit option, as expressed in a recent blog post by Pete North.

First up is the old chestnut, how much EU law are EEA states subject to. At present, EEA laws in force (5,594) compared with EU laws in force (20,849) is just under 27%.  But then looking at EU Directives that apply to EEA provides a figure of around 70%. Which tells us these numbers do not add to our understanding as Christopher Howarth discussed on his blog a couple of years ago.

Andrew Chapman also examined EEA law as a proportion of EU law in a May 2016 blog post, with a close look at a whole range of studies, including attempts to quantify impact across policy areas and weight the impact of different legislation. Chapman's conclusion feels about right to me : "For myself, I would say that under the EEA, we would have to adopt around half of EU law. Given our opt-outs from the euro, Schengen, and the area of Freedom, Security and Justice, I would say that we currently are required to adopt around, say, 80% of EU law. So, if we were to leave the EU, join EFTA, and remain in, or re-join the EEA, I would say that we would have to continue to adopt well over half, possibly getting closer to two-thirds, of what we currently adopt." 

Perhaps the only sensible way to look at this question is to consider what areas of governance we would be still subject to and what areas do we gain freedom.

The EEA agreement covers the "four freedoms" - goods, services, capital, and of course free movement of people. So the rules and regulations of all trade and commercial activity are dictated by the EU. This also applies to all trade with third countries, which makes it impossible to negotiate on the removal of non-tariff barriers with third countries. For example, Protocol 12 of the EEA agreement states that the EU will take the lead in negotiating Mutual Recognition Agreements (an important tool in removing regulatory barriers to trade) with third countries.

Well at least with EFTA EEA we gain freedom from the EU common external tariff. Except that the North/Flexcit vision is that we continue to align with the EU’s tariffs in an attempt to avoid the burden of Rules of Origin. This would also mean the UK is unable to sign new Free Trade Agreements. So much for an independent UK trade policy.

In addition to the four freedoms, the EEA agreement covers a number of flanking or horizontal policies. Adopting EU law in areas such as Consumer Protection, Environment, Health and Safety at Work, Labour Law, Equal Treatment for Men and Women is mandatory in order to trade under the EEA agreement.  EFTA EEA Governments have also taken the opportunity to sign up to (via EEA protocols) and spend taxpayers money on, all sorts of EU policies in fields as diverse as Civil Protection, Anti-Discrimination and Family Policy, Public Health etc.

Well at least with EFTA EEA we gain freedom from the Common Fisheries Policy and Common Agricultural Policy. Except that the North/Flexcit vision is that we would stay signed up to these policies for another 10 years or so, while we  design and implement new UK policies. Don't tell the farmers and the fishermen.

The EEA agreement does at least exclude the EU Charter of Fundamental Rights and Monetary Union. Although the UK already had opt-outs from these as an EU member. So no gains there.

Foreign Policy and Defence are not covered by the EEA agreement. But even as we prepare to leave the EU, the UK Government is surrendering Defence autonomy and signing up for EU Defence Union initiatives. This has not got the attention it deserves as many have been fooled into thinking this will not apply to the UK once we leave the EU. In fact, the Government is aiming for an on-going relationship inside the EU's Common Security & Defence Policy - the model for this type of relationship is none other than EFTA EEA state Norway's "second country" status..

Norwegian eurosceptics also complain that the EEA agreement increases in scope over time. It is not difficult to foresee the EU wishing to see "a level playing field across the Single Market" (code for centralised Brussels legislation) in areas like taxation and welfare benefits in the near future. The EU has already signaled it's displeasure at Ireland's low tax regime. Harmonised welfare benefits has been under discussion for some time, it seems likely that the EU will use calls for reform to free movement to pursue this agenda. The EU's article 50 negotiating guidelines require the UK to agree to "safeguards against unfair competitive advantages through, inter alia, tax, social, environmental and regulatory measures and practices". The EU agenda is crystal clear in these spheres.

I can see there may be a case for continuing with EU  law and ECJ rulings in a few isolated cases, aviation (to retain membership of ECAA) and Euratom being the two obvious examples. But the Norway / Flexcit option accepts huge swathes of EU law and it is difficult to see what new freedom it provides. It appears to have all the disadvantages of EU membership, minus the voting rights and "seat at the EU top table".

Nor would the Norway/Flexcit option seem to provide any reassurance in terms of avoiding further EU integration, given that: (i) the EU have already stated their intention for EFTA states to become "EU Associate Members" and replace the current EEA agreement and Swiss bi-laterals; (ii) Hard-core Remainers like Nick Clegg have already stated their aim of retaining Single Market membership as part of a long-term goal of rejoining the EU as associate members.

Do we trust our political class to resist moves to expand the scope of the EEA agreement ? To avoid signing up for all sorts of other EU initiatives via EEA protocols ? to avoid a stealthy transition from Single Market to Associate Membership at some point ?  I certainly don't, especially as May's Government seem to be lining us up for such a betrayal even as we are supposed to be leaving the EU - by delivering an "Establishment" Brexit. I can see little difference between the Ukraine model the Government seems to be seeking and the Norway/Flexcit model - both leave us subject to huge swathes of EU law and vulnerable to re-incorporation to "the project" of EU political union.

The more I look at Brexit, the more convinced I become that our future relationship with the EU must be based on a significant degree of separation - a CETA-based FTA plus military co-operation limited to NATO and some limited agreements on information sharing. Anything else leads us straight back to where we came from.

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