The Missed Opportunity in Brief
We could have already left the political European Union (EU) whilst still largely carrying on commercial activities as before through continuing membership of the European Economic Area (EEA). The UK could have already been well on the way to free trade agreements with old and new trading partners. The UK together with its partners inside the European Free Trade Association (EFTA), the Visegrad countries and the European Commission could have started exploring adaptation of the EEA to better suit emerging needs. The UK could have started limiting freedom of movement to suit its interests. The jurisdiction of the European Court of Justice could have ended. The Common Fisheries Policy could have ended. The UK could be once again joining the countries at the top table of the World Trade Organization (WTO) and other global bodies to promote its interests. Any rancour (or ‘blame game’) with the European Commission could have ended and the ‘deep and special relationship’ started on a sound footing. And so on … None of this has happened although perfectly feasible, largely because of the antics of Mr Cameron, Mrs May and the Conservative Party.
The Start of the Mess
Mr Cameron as Prime Minister prevented the Civil Service from preparing a viable and practical exit plan for leaving the political control of the EU, whilst retaining beneficial trading and other links. Such a plan would almost certainly have included retaining, even temporarily, membership of the Single Market (and wider EEA) through re-joining EFTA. Thus we could have had near frictionless trade, as at present and the elimination of many of the problems created by the ‘No Deal’ situation or Mrs May’s Brexit in name only unworkable Chequers Plan and White Paper. Mr Cameron instead of triggering Article 50 immediately, as he claimed he would do, promptly resigned.
Mrs May makes the Mess Worse
Mrs May, after taking over swiftly as Prime Minister on 13th July 2016 whilst dithering and delaying in triggering Article 50, also did nothing to develop a viable exit plan to leave the political EU whilst retaining frictionless trade. Instead in her speech at Lancaster House on 17th January 2017, she recklessly announced her decision that the UK would also leave the Single Market. Her declared grounds related to control of immigration and the indivisibility of the ‘four freedoms’ of the Single Market. Whilst this is true for EU Member States, it is untrue for members of EFTA participating in the EEA who can take unilateral action by implementing Article 112 (the Safeguard Measures) in the EEA Agreement. (see also What is the Truth about Freedom of Movement)
The Conservative Party adds to the Chaos
During their increasingly bitter internecine conflict, the various factions within the party have developed scenarios that are usually poorly informed and often far from realistic or achievable. This has hampered discussion of the important issues and examination of viable options for leaving the EU. Constructive engagement has been replaced by not listening and increasingly bizarre claims that really need debunking; the World Trade Organisation (WTO) option, bonfire of EU regulations, the EU will cave-in at the last minute, no deal is better than a bad deal, Brexit can be reversed.
The World Trade Organisation (WTO) Principles
The WTO ‘rules’ are formed of basic principles to be incorporated into more detailed or prescriptive rules, regulations and laws by WTO members in order to facilitate international trade. Perhaps foremost amongst these principles is for non–discrimination. WTO principles can be circumvented in exceptional circumstances such as emergencies or for national security.
The WTO does not have powers to enforce its principles (or the resulting laws of WTO members) should they be contravened and an aggrieved party (or parties) to suffer provable injury (nullification or impairment) as a consequence. However mechanisms for redress do exist in WTO compliant treaty provisions although it can take some time (years) before sanctions for loss can be applied by an aggrieved party.
The EU’s laws for the Single Market are WTO compliant (thus fulfilling any WTO obligations; they apply equally to all ‘third’ countries outside the EEA including the UK once we’ve left. Exports to the EEA will consequently fall drastically in the absence of frictionless trade.
No bonfire of EU/Global Regulations
It has been estimated (by EFTA) that 90% of EU regulations affecting the functioning of the Single Market originate from higher global bodies such as the WTO or international standards organisations, for example, the International Standards Organisation (ISO). If we wish to trade internationally whilst being a member of the WTO we would still have to retain them. However, we could potentially implement the higher level global standards, principles etc. in different ways to how the EU does, if there is limited impact on trade with the EEA; there may be instances where change is not justified.
The EU’s acquis or body of laws governing the Single Market (and wider EEA) amounts to about a quarter of the whole EU acquis. Thus the remainder of EU laws (about 75% not relating to the Single Market) we could potentially amend to suit our interests whether or not we are in the EEA. However, Mrs May’s Chequers Plan/White Paper and the EU demands in response make it clear that many (if not all existing and future) EU laws will remain and be enforceable within the UK, probably by the European Court of Justice (ECJ).
No Deal means No Frictionless Trade and Reduced Exports to the EU
The No Deal situation is unlikely since deals will have to be struck between the UK and EU. However, whilst it is obviously better to strike deals in a calm atmosphere for an orderly withdrawal from the EU, an impending or actual No Deal situation would be a crisis.
The Single Market (and wider EEA) has a legalistic, top down, centralised bureaucratic structure to control access, conformity assessment and market surveillance. On the outside, the UK becomes a ‘third’ country subject to the same EU/EEA legislation as all other ‘third’ countries. Trying to change status from inside to outside at short notice would inevitable involve ‘frictions’ and many exports to the EEA ceasing either temporarily or permanently (the ‘cliff edge’).
The EU Can’t Legally Cave-in at the Last Minute
The EU can’t easily change its existing legally based arrangements for governing the Single Market to accommodate the UK. This would be an exception that would create a precedent for other ‘third’ countries, go against its existing direction of travel over many years. And contravene WTO basic principles for non-discrimination. In addition there would need to be agreement by all the remaining Member States both to amend extensive existing EU legislation and to approve different terms of reference for their negotiating team led by Mr Barnier. At best the EU could agree to temporary emergency measures to suit its interests, including making severe reciprocal demands upon the UK.
Meanwhile Mrs May is becoming increasingly delusional, obdurate and making fruitless efforts to sell her Chequers Plan for Brexit in Name only to European leaders. They cannot legally accept it.
Mrs May’s Brexit Means Brexit in Name Only
Why would the EU want us back as a full member if Mrs May repeatedly caves-in to their increasing demands? Brexit can be delayed and converted to Brexit in Name Only as Mrs May is doing with her dithering and unworkable Chequers Plan. However, re-joining the EU as a full participating member is unlikely. Once we have left the EU, it would need several years of re-negotiations and agreement of the existing Member States to re-join.
The following provide a useful starting point for further drilling down into detail: