A soft Brexit would still give Britain a say in making the rules

Professor Carl Baudenbacher
Professor Carl Baudenbacher: Britain would not just become a passive rule-taker

If leaving the European Union and reverting to World Trade Organisation tariffs represents the hardest of hard Brexits, then being part of the European Economic Area (EEA) on the European Free Trade Association (EFTA) side represents a “soft Brexit”. Last week, I went to a roundtable at the House of Commons that looked at this option.

As well as several politicians, one of the panellists was Professor Carl Baudenbacher. A top international jurist and legal academic, Swiss-born Baudenbacher is a senior judge (and long-time former president) of the EFTA Court, the main legal interface between EEA members Iceland, Lichtenstein and Norway, and the EU.

Perhaps the biggest criticism of EEA membership is that Britain would lose its ability to directly vote on EU rules, but would still have to obey them. While EEA membership would undoubtedly diminish Britain’s direct influence, Baudenbacher strongly disagrees that Britain would just become a passive “rule-taker”. This is because EEA members are consulted on new rules as part of the “two-step” decision-making process.

While some Norwegian pundits constantly like to talk this system down, Baudenbacher thinks that this reflects their desire for Norway to become a EU member, and that, in reality, “the arrangement has actually worked quite well”.

Baudenbacher also argues that it’s important to not place too much emphasis on the importance of a vote. Since “most EU policymaking is conducted by consensus”, the loss of formal voting rights is less important than being present in the key rooms and committees when the proposals are being drawn up, something that EEA membership would largely preserve. In any case, if Britain was really serious about going down the EEA route, then the degree of input that it could have into rulemaking “could be up for negotiation”.

Even if EEA membership reduced Britain’s ability to craft EU laws, going down the EEA route would still radically reduce the number of European rules that we would have to follow. Indeed, the whole idea of the EEA is that “it just covers trade without any political integration”, which means that we would be able to ditch those laws that didn’t relate to the single market. This includes the common foreign policy, the common agricultural policy and the fisheries agreements. If we took full advantage of our new freedoms, experts estimate that we could tear up nearly 70% of the EU rulebook overnight.

One of the government’s red lines is that Britain must leave the jurisdiction of the European Court of Justice (ECJ). Unsurprisingly Baudenbacher is keen to stress that the EFTA Court is a separate body and that it does not act as a rubber stamp, instead considering each case on its merits.

For example, in 2013, it ruled that the Icelandic government was not required to compensate Britain and the Netherlands for bailing out bank Icesave’s depositors. Its equal status is shown by the fact that its judgements have been cited on many occasions by the ECJ in its rulings. It is also noticeably more pro-market than its counterpart in Brussels, “as we think that market-inspired solutions are the best”.

Of course, EEA membership is dependent on Britain accepting continuing freedom of movement of persons. Since he is a judge, rather than a politician, Baudenbacher “doesn’t want to be drawn” on how flexible the EU is willing to be about the practice as opposed to the principle.

While the Swiss and the EU managed to find a compromise that involved minor changes to how it operated, he notes that the overall Swiss-EU arrangement (which involves bilateral treaties enforced by diplomats) is not something that Brussels is particularly keen on. Indeed, the EU is putting pressure on the Swiss to join either the ECJ or the EFTA Court mechanism.

Naturally, all this speculation is irrelevant if the three EEA countries don’t agree to let the UK join their body. While some Norwegian politicians have expressed reluctance, again possibly due to their desire to push for full EU membership, their diplomats “have strongly hinted that they would seriously consider British membership”.

At the same time, “there have been several statements from the Icelandic government that they would welcome the UK”. Overall, the only serious barrier seems to be that Theresa May has repeatedly ruled this option out. As Baudenbacher puts it, “as the UK has never asked, it is unrealistic to expect the EEA/EFTA states to invite them”.

  • Cynic_Rick

    This article recognises the EEA/Efta route for leaving the EU, the preferred route espoused by Richard North; the preferred route forming the basis of Flexcit which in itself is far more forward thinking than just leaving the EU:

    http://www.eureferendum.com/documents/flexcit.pdf

    A recent article of Richard North’s:

    http://eureferendum.com/blogview.aspx?blogno=86788

    has much to complement what is written in this article. For instance:

    “For the first time in recorded history, we have a prime minister recognising that the EU is not the fount of all regulation and that “many” regulatory standards originate from “non-EU bodies”.

    So having departed from the EU we will continue to be subject to overwhelmingly the same regulations as of now – this state of affairs being termed by Richard North as the “double coffin lid phenomenon”

    Many of these regulations are formed in Geneva by UNECE. Under the EEA/Efta umbrella the UK would thus be enabled to have a say in the formation by UNECE of new regulations; regulations which the EU would have to enforce!

    So, in leaving the EU and joining EEA/Efta, the UK far from losing a say in regulation formation would in very many instances have a say over and above that of the EU.

    Furthermore, we’d be able to continue trading within the Single Market in much the same capacity as at present, be enabled to forge our own new trade deals with the RoW, and via Article 112 of the EEA Agreement unilaterally declare some control over any or all of the four Freedoms of Movement if we wished.

    Flexcit includes by far and away the best route for Brexit.

  • Quantum

    We don’t want a ”say”, to be under, or to align, nor a special relationship, a deep partnership or a meaningful alignment. What part of leave the EU do you globalist shills not understand?

    • Cynic_Rick

      Whether you like it or not the world has moved on a lot since the days of the British Empire.

      There are very many regulations to which the UK would continue to be subject whatever way in which we leave the EU.

      Of these “globalist” regulations there are very many with which we would be all the poorer in terms of quality of life to be without.

      • Quantum

        yawn we had this debate already

      • kowloonbhoy

        *British Empire….*

        FFS nobody is mentioning the Empire —- everybody got over that one 60 yrs ago, so why cant you?

        Rik the Remoaner has given up on trying to convince us that the UK would be *better off trade-wise and thus financially* by staying within the EU —- now he is pushing the *better quality of life with EU regulations* —- it’s his only card left to play.

        • Cynic_Rick

          I’m a firm believer of certain factions of the masses taking example from their leaders and their leaders’ cronies. With a ruling class and media as stupid, ignorant and arrogant as we have, it can only follow that there will be comments like yours.

          Where did I say I didn’t wish to leave the EU?

          Where did I say remaining in the Single Market could only be achieved by staying in the EU?

          Where did I say that leaving the EU would mean the UK not still remaining subject to most of the regulations to which we are currently subject?

          I have said the UK would be better, as you put it “trade-wise and thus financially”, by remaining in the EEA via joining Efta and then being enabled to access the Single Market and to forge its own trade agreements with the RoW unfettered by the constraints of being in the EU.

          I have said that to just leave the EU and trade on WTO terms would be catastrophic for the UK; this is what the Ultra Brexiteers advocate.

          I have said that being in the EU is not the only fundamental problem of extreme significance to the UK; that another such problem is closer to home – Westminster.

          I have said Richard North’s Flexcit includes the most sensible route for the UK to Brexit. But it is much further forward thinking than just that. Amongst other political ambitions Flexcit also aims to fettle the Westminster problem.

          And just as Westminster can’t, for the most part, think further ahead than “the length of its proverbial nose”, so to with those that unwittingly take their example from our leaders and our leaders’ cronies…

  • Cynic_Rick

    Possibly as an aside:

    One wonders if leaving the EU is interpreted by the Ultra Brexiteers as breaking *all* ties with Europe. And not just those associated with political union…

  • Carl Wells

    But what do we actually gain from joining the EEA, compared with our current position? Surely we lose the advantages won for the UK by Mrs. T? Would we not have to make similar levels of financial contribution, accept EU laws and ECJ jurisdiction, and freedom of movement, just as we do today, but with our position substantially weakened?

    It seems to me that if we want to leave, then we should leave. Otherwise, rather than joining the EEA, we should remain, unless there are clear advantages to EEA membership over the status quo.

    • Cynic_Rick

      Right Carl, I think you are confusing EEA with Efta. There is a lot of confusion and misinformation being bandied about with regard to Brexit and it is showcasing the stupidity, ignorance and arrogance of our ruling classes and of the media.

      First, we are already members of the EEA but by leaving the EU we would also leave the EEA.

      However, we could by rejoining Efta (I say “rejoin” because we were once members) regain membership of the EEA.

      As members of Efta we would neither be subject to EU laws or to ECJ jurisdiction but to the Efta Court.

      Retaining or regaining membership of the EEA via Efta would allow us much the same access to the Single Market as we presently enjoy – access to the Single Market still comes at a price; yes, one not much different to the current one. But then access to the Single Market is surely a clear advantage to EEA membership and surely worth the price we are currently paying.

      But I would not know any of this if I didn’t follow Richard North on:

      http://eureferendum.com/default.aspx

      • Ralph

        Cynic – I don’t think you, or for that matter thousands of people like you, understand the main driver behind the Brexit vote. You keep telling everyone to listen to Richard North but I suggest you should look up Mark Blyth on You Tube and smell the roses yourself!

        • Cynic_Rick

          So, Ralph:
          a) what do you consider to be the main driver behind the Brexit vote?
          b) why do you think I disagree with that?

  • Wolf665

    The main political and economical power – trust and the soft power of the UK have been lost completely. That translates directly into more businesses and banks choosing Paris and Frankfurt.

    Brexit is the biggest lost for the UK since we lost America.

    All options now are damage limitation. Means it will take years for the UK to recover even if we decide to stay in the EU. UK already has lost and is losing ££ billions despite still in the EU. Only GDP lost is £20 billion per year so far.

    Any Brexit soft or hard will mean further substantial losses.

    That is what happens when you let unicorns to rule the country.

  • AJAX

    There is no “soft” or “hard” “Brexit”, there’s leaving the eu vs not leaving the eu.

    The nation voted to leave the eu, & doesn’t want any further involvement with its governance.

    Get the message Dr. Partridge.

  • Cynic_Rick

    The gist of your replies are more or less what I expected. I have listened to Mark Blyth for a bit, in particular with regard to the Brexit vote, and I think we are all in agreement that the Brexit vote was an anti –Establishment vote.

    But, correct me if I am wrong, I don’t think Mark Blyth is doing anything more than highlighting the problem. Whereas Richard North’s Flexcit lays out a plan for solving the problem, Brexit merely being the first step of six, The Harrogate Agenda being the concluding step, outlined here:

    http://harrogateagenda.org.uk

    I don’t dispute the Establishment are doing all they can to defend their positions but to Brexit in a ‘bull-in-the-china-shop’ manner (i.e WTO option, Hard Brexit) would be severely shooting ourselves in the foot.

    Utilising the EEA/Efta route (i.e as advocated by Flexcit) avoids shooting ourselves in the foot and provides a platform from which the Establishment can be further tackled.

    That is why the Establishment are set against the EEA/Efta route.

    • Ralph

      The key point is that Mark Blyth is highlighting a different (albeit connected) problem and that is the disenfranchisement of millions of UK voters. They feel betrayed and let down by politicians in general and I think that most people would agree they have a fair a valid point.

      What has happened to different sectors of the population post the 2007/8 banking fiasco was pretty much the last straw for many of these people. They feel that Brussels is out of their reach but their votes can still hold some sway in Westminster and they are probably right.

      As valid as your arguments might be for the interests of maybe millions of people in the UK, they will probably still not pass the one man one vote test. Hence my democracy/capitalism point.

      • Cynic_Rick

        Ralph, I don’t see Capitalism per se as being the problem. The problem is Crony Capitalism – the ‘you scratch my back and I’ll scratch yours’ syndrome between the oligarchy and their puppet politicians.

        The Harrogate Agenda (THA) is aimed towards restoring democracy:

        I quote from:

        http://harrogateagenda.org.uk

        “Our objective is to recover power. Our focus is on the acquisition of power. And once we ourselves, the people, hold the power, we can then attend to the many problems and injustices that plague modern society. But without power, there is only protest – and we achieve nothing of any lasting value. To help us acquire power, we are adopting the original strategy of the Chartists. Like them, we felt it was vital to frame a very limited number of achievable demands – six in number. These are listed below.”

        You could learn more about THA from the following website:

        http://harrogateagenda.blogspot.co.uk

        But before THA can be initiated the trail needs to be blazed by the 5 preceeding steps of Flexcit.

        I notice you make no mention of a comparable plan of action emanating from Mark Blyth; just sound bytes.

        • Cynic_Rick

          !!

      • Cynic_Rick

        Ralph, you state:

        “What has happened to different sectors of the population post the 2007/8 banking fiasco was pretty much the last straw for many of these people. They feel that Brussels is out of their reach but their votes can still hold some sway in Westminster and they are probably right.”

        The key point is that without appropriate significant action “these people” (as you refer to them) will *never* have enough “sway in Westminster”.

        I re-iterate from:

        http://harrogateagenda.org.uk

        “… without power, there is only protest – and [with only protest] we achieve nothing of any lasting value.”

        Correct me if I am wrong, but to me all that emanates from Mark Blyth is protest; whereas the objective of Flexcit (to include The Harrogate Agenda) is to recover power to “these people”…

        • Ralph

          I agree with you Rick – and that is exactly what they are doing – they are taking action!

          I don’t think Blyth wishes or indeed needs to suggest solutions – he is simply highlighting that there is an elephant stomping around the room that the “establishment” is keen to ignore.

          Things have reached such an advanced stage now that unless something is done to appease those who feel disenfranchised, then they will continue to look for other solutions. This has already started to happen right across the EU and there are Countries like Italy who seem far more advanced in their thinking than we are in the UK.

          What seems to be locking many of the Member States in to the EU at the moment is the Euro but at the same time that is what is also tearing some of them apart. Like many economists Blyth has often been critical about the Euro but these people are continually ignored – c’est la vie!

          As I see it (and I suspect Westminster does too), if the end game of Brexit is anything but a restoration of full power to Westminster then the next political party to break through will make UKIP look like a passing fashion, which it most certainly was not. Like them or loath them they have certainly had a huge and lasting impact on the UK’s political landscape and who knows, maybe the EU’s too.

          • Cynic_Rick

            So, am I correct to take it that Mark Blyth considers a Hard Brexit (WTO option) to be a step towards the desired end game of Brexit?

            • Ralph

              No – not really – i think his point is that people like you are trying to influence the wrong people – your opinions are not even read let alone understood by many of those who feel disenfranchised, which leads you back to the one vote one man issue.

              That vote is in itself an action if it is used and its up to the political parties to understand that and react accordingly – I am not holding my breath tbh and I am sure you aren’t either.

              • Cynic_Rick

                You mean that attempting to gain a Brexit in a sensible manner by trying to influence the Government both directly and indirectly is trying to influence the wrong people?!

                The Government is between a rock and a hard place, between the oligarchs and a largely disenfranchised electorate. It doesn’t want to upset the oligarchs but it does want to be re-elected at the next GE.

                The Tories therefore have to go through with Brexit or defer it until after the next GE. The disaster capitalists amongst the oligarchs would prefer a Hard Brexit (they would take financial advantage of the economic disaster which would ensue from a Hard Brexit). But because of the ensuing chaos the Tories would in all probability never be re-elected again.

                The oligarchs would not like a Soft Brexit (EEA/Efta) because of the platform it would provide for further undermining of their power. And if the electorate were properly informed about the EEA/Efta option, which they haven’t been because of oligarch influence, they’d realise it to be far better than any alternative (whether it be feasible or not) currently being bandied about.

                I’m hoping common sense will prevail and there will be the Soft Brexit undermining oligarchal power as a welcome but unintended, unavoidable consequence without shooting ourselves in the foot as with the Hard Brexit.

                But no, I’m not holding my breath!

                • Ralph

                  I am sorry Rick but I think you’ve got sucked back in to your own argument again, which was not my point. Furthermore you’ve also brought in Party Politics, which actually highlights what I said before about the moving of goal posts.

                  From their own perspective the Tory Party did not want and still does not want a Brexit of any shape or form. The referendum happened to stave of UKIP and the Torys are now paying the price for the gamble they made that they subsequently lost.

                  One of the ironic things about that gamble (which gets virtually zero media coverage at all nowadays) is the huge number of “hardcore’ Labour supporters who actually voted for Brexit. For some strange reason the Tory Party got it into its head that by championing Brexit a lot of those same people would vote Tory in the GE they then called. They were of course wrong and I think that what Mark Blyth’s long term/broader view indicates is that they got it wrong because they completely misunderstood what caused the Brexit result in the first place.

                  As I said at the start, in my view what is happening now seriously challenges the long held virtue that capitalism and democracy can continue to go hand in glove for that much longer, unless there is significant change.

                  The “arguments” you are putting forward for change, as virtuous as they may be, are not not being heard (let alone considered) by an overwhelming majority of the people who voted for Brexit. That is the major challenge. Brexit can be described as a protest but in paractice it was actually an action in its own right. It is that action and what caused it to happen that needs to be addressed first, otherwise things in the UK will eventually get worse before they get better.

                  I think that this therefore makes a “hard exit” almost inevitable now, unless the EU is prepared to make any significant concessions, which seems unlikely. I arrive at that conclusion very much from a practical perspective rather than a “what’s best” point of view. I simply believe that following the referendum if full power isn’t restored to Westminster, then over time the public won’t accept it unless it sees a pretty immediate benefit from doing so which seems unlikely.

                  • Cynic_Rick

                    Ralph, a question.

                    Are you saying that you think a Hard Brexit will “restore full power to Westminster” and as a result will appease the anti-Establishment sentiment which led to the Referendum result?

                    • Ralph

                      Rick

                      The UK voted democratically to leave the EU and there was a clear understanding at the time that unless something else could be agreed with the EU then we would trade with them on WTO terms.

                      Hard or soft Brexits did not exist at the time of the referendum. These terms have been invented by people who are not happy with the vote to leave the EU. It is perfectly reasonable to consider these people as capitalists in the purest sense, because capital gain is clearly the focal point of their argument(s).

                      If we end up with a Brexit outcome where capitalists are effectively able to undermine the democratic will of the people (which is where a lot of people would appear to like this to go) it would be proof positive that the relationship between capitalism and democracy Is under heavy strain.

                      I absolutely don’t think that the restoration of full power to Westminster would appease all or even most of the people who voted in favour of Brexit. This is just the starting point for many of those people who want to see significant changes in our society and are especially unhappy at how they feel they have been treated/misled etc post the banking crisis circa ten years ago.

                      I am not saying they are right to be unhappy or anything about the extent to which they should be unhappy but like many other people (and judging from some of the things that you have already said I think that includes you) I do feel that it is quite understandable as to why they might well have some quite valid grievances.

                      Politicians at Westminster have really got a huge dilemma on their hands. They collectively clearly don’t want a Brexit at all but at the same time neither do they want to be seen to undermine the democratic process either. I think it’s called squeaky b*m time!

                      Ralph

                    • Cynic_Rick

                      Ralph, you think a Hard Brexit to be almost inevitable. I would say that far from restoring full power to Westminster it would highlight to “the people” how out of control Westminster is.
                      There would be absolute chaos and subsequent civil unrest, to say the least.

                      Is this a desirable starting point for the appropriate significant change we would welcome? I think not.

                      Surely the Government is not that stupid to allow default to the WTO option. As I said earlier the Government is between a rock and a hard place. The rock being the oligarch puppeteers not happy with the EEA/Efta route; the hard place being the consequence to “the people” of defaulting to the WTO option.

                      To plug the virtues of Flexcit is to try to gain more support for the EEA/Efta route; to try to prevent the catastrophe. Is Mark Blyth doing anything to avert a catastrophe; or is he fanning the flames to encourage one?

                    • Ralph

                      Rick

                      I meant of course full power to Westminster as opposed to being subservient to Brussels but I think you probably knew that.

                      Absolutely everything you say might be right, however, this should of all been debated (and indeed a lot of it was) before the referendum and not afterwards.

                      As I alluded to before, Mark Blyth is an observer rather than an activist. I am sure he has opinions about most things but I don’t think he has hardly ever, if ever, actually promoted his theories – he simply shares his observations with people and he has got a pretty decent track record of usually being proven right.

                      The responsibility sits clearly with the politicians and has done from the get-go. As I think we both agree, they are in a very difficult position and their next decisions are likely to have a significant impact, whichever way they decide to go.

                      Democracy or capitalism?

                      Ralph

                    • Cynic_Rick

                      Ralph, I see we had a lengthy interchange on here 2 months ago. I knew someone had mentioned Mark Blyth to me once before, now I know it was you!

                      You then said “We are clearly of like minds Rick…” but Ralph fortunately not too alike that we can’t have an interesting discussion.

                      So, barring capitulation by the EU and the formulation of a mutually acceptable Deal (highly unlikely) there seem to me to be 3 options in the shorter term and 2 of those options in the longer term. Those 2 being WTO option and EEA/Efta, the third being prevarication and delay – kicking the cannery down the road.

                      I just wonder for how long the cannery can be kicked down the road – until after the next GE?

                      You see 2 outcomes in the longer term – democracy or capitalism.

                      Ralph:
                      a) Which of my 2 longer term options do you consider will have the end result of “democracy”?
                      b) Which decision of the politicians would result in the continuation of capitalism (I think you mean crony capitalism as opposed to just capitalism, or maybe not, in which case:
                      c) If you don’t see democracy and capitalism to be compatible, what system do you see democracy to be compatible with?

                      Rick

                    • Cynic_Rick

                      Ralph, what happened to your monologue?

                      Ralph, from what I can gather, rightly or wrongly, I don’t think we are that far apart.

                      We both want Britain to leave the EU.

                      We both want to see a much bigger semblance of democracy.

                      Richard North and the Leave Alliance have a plan called Flexcit which aims to achieve both of those and more to include a ‘road map’ to integrate Britain and Europe into the developing global economic matrix.

                      Where we seem to differ is that:

                      1) you think it highly unlikely we’ll leave the EU without a lot of civil unrest, etc because the virtues of the EEA/Efta route of leaving the EU (Phase One of Flexcit) are not getting through to enough of the right people, enough of the demos; you reference this as “one man one vote”. Whereas

                      2) I think it possible that crusading by Richard North and the Leave Alliance might eventually influence enough of the right people, enough of those in Westminster, to leave the EU via the EEA/Efta route.

                      Mark Blyth on here:

                      https://www.youtube.com/wat

                      At about 49:46 when asked “Why did the Brits vote for Brexit?”, Mark Blyth quipped “Because they’re morons”.

                      So, Ralph, do you still think my “telling everyone to listen to Richard North” rather than to listen to Mark Blyth to be prudent?

                      Rick

                    • Ralph

                      This is actually the third reply I have written to you Nick but it appears that I am being barred from contributing further although nobody has told me so is so many words. Let’s see if this short one gets through and if so I will try again.

                    • Cynic_Rick

                      Ralph, I myself have wondered if longevity was a problem.

                      I’m on Matthew’s latest Brexit thread – concerning the ‘Norway Option’.

                    • Ralph

                      Rick

                      We voted to leave the EU and that should be honoured.

                      Having left the EU the Government can then consider alternative solutions to being full members of the EU but it can’t reasonably do that before then, if that involves compromising any of the key things that influenced the vote. Obviously one of those was control of our borders/freedom of movement and the other key one was our Sovereignty.

                      I think everyone knows that this is truly right but the master manipulators who don’t want us to leave at all and who lack integrity and have little time for true democracy have been and will continue to rock the boat.

                      It is still a Capitalism v Democracy contest as far as I can see.

                      Ralph

                    • Cynic_Rick

                      I’m with you now but I think Oligarchs vs Democracy would describe it better!

                      Hope to see you on Matthew’s latest Brexit article – concerning the ‘Norway Option’.

                      Rick

                    • Ralph

                      Rick

                      You are probably right – maybe my tag should be Cynic Ralph!

                      I’m not sure that anything will change my view in the short term now though because currently its more about whats democratically right for the people rather than what I personally think is ultimately best.

                      One thing that I am absolutely sure about though, even much more than I was before the Referendum, is that the EU is sadly morally bankrupt. Their leadership is clearly distanced from its constituency and the gap is getting bigger. It is so sad to see such a commendable project crumble on the personal ambition of just a few people but I think it is becoming increasingly obvious that unfortunately that is undoubtedly true.

                      I cant see this ending well for anybody, anywhere!

                      Ralph

  • Cynic_Rick

    Richard North’s article of today further complements Matthew’s article:

    http://eureferendum.com/blogview.aspx?blogno=86824

    For instance:

    “However, Booker [in the Sunday Telegraph] does get to write about another example [of discarding EU law only to find the “double coffin lid” of international law replacing it], one raised by the continuing furore over the decision that our new blue UK passports should not be made in Britain but by a Franco-Dutch firm.

    “By many, this is being blamed on our slavish obedience to the “EU’s procurement rules”, which ordain that government contracts must be offered internationally and go to the lowest bidder. But, says Booker, even after Brexit **we will still have to do this under the rules of the WTO**, those very rules which ultra-Brexiteers fondly imagine will somehow solve all our problems even if we leave with “no deal”.”