Yesterday, I pointed out what appear to be two serious problems in Iain Mansfield’s prize winning Brexit paper. First, he writes as if joining EFTA would in itself give preferential access to the European (ie EU) market. Second, he says that our entry to EFTA would need the agreement of the EU and all its member states.
On the second point, here is Article 56(1) of the consolidated (ie in its current amended form) EFTA Convention, which is also now known as the Vaduz Convention, since the major revision of the Convention at Vaduz in 2001:
Any State may accede to this Convention, provided that the Council decides to approve its accession, on such terms and conditions as may be set out in that decision. The instrument of accession shall be deposited with the Depositary, which shall notify all other Member States. This Convention shall enter into force in relation to an acceding State on the date indicated in that decision.
Articles 44(1) and 44(5) specify that each Member State of EFTA has one vote on the Council and that decisions are taken unanimously unless otherwise stated in the Convention:
2. Each Member State shall be represented in the Council and shall have one vote.
5. Decisions and recommendations of the Council shall be made by unanimous vote, except in so far as this Convention provides otherwise. Decisions or recommendations shall be regarded as unanimous unless any Member State casts a negative vote. Decisions and recommendations which are to be made by majority vote, require the affirmative vote of three Member States.
That seems decisive to me.
Incorporation of 2/3 of the EU acquis
Mansfield states clearly his reasons for preferring us not to join the EEA:
Whilst trade access is critical, full membership of the Single Market should not be sought. … Should the UK retain membership of the Single Market, almost all of the most onerous or controversial aspects of EU membership would continue to apply, including the free movement of people and the Working Time Directive. Accordingly, the UK should, unlike Norway, seek to remain outside the European Economic Area (EEA).
I think ‘almost all’ is rather strong, since Norway is exempt from a large part of the acquis. Nevertheless, I agree with Mansfield that the EEA relevant part of the acquis, to which Norway is subject, do include some of the aspects of EU membership which it is particularly important for us to become free of, including the ones he mentions. I agree therefore with his conclusion that we should not join the EEA.
He then goes on (p. 13) to say that in order to gain the necessary trade access in both goods and services, we ‘would need to accept some EU regulation’. I am not sure this is the right way to put it. If we are to become a free country, then I don’t immediately see why we have to ‘accept’ any EU regulation. We may well choose to duplicate many of the EU Regulations that are currently enforceable in this country, at least for the time being. That may well be convenient for us, just to keep the wheels turning, while we work out which of them should be retained as they are, which amended, and which thrown out. To me, ‘accept’ sounds too passive, and too much like our current situation, and too much like the situation of the EFTA-EEA nations, which have to incorporate new EU Regulations as they are issued, albeit with some delay and a theoretical right to refuse them, which has hardly ever been found possible in practice to make use of.
He then says:
The UK should also be prepared to accept regulation on standards for electronic machinery or for health and safety inspection requirements for food exports: many of these will be based on international standards and similar in type if not specifics, to what exporters to other countries such as the US must abide by.
This is unclear, it seems to me. Are we to ‘accept regulation on standards for electronic machinery’ just for exports, or domestically as well? As he says, manufacturers in free countries like the US have to meet certain EU specific standards in order to export to the EU. No doubt we would have to do the same. But that doesn’t mean we have to ‘accept’ EU regulation into our own nation. Probably we would adopt the international standards domestically, and in many cases these would be similar or identical to EU standards, in which case there would be little or no difficulty in exporting to the EU. But all this would be up to us, so far as I can see.
He goes on:
There is no similar justification, however, once having left the EU, to accept regulation on purely internal matters such as working hours, hygiene requirements for domestic restaurants or mandatory quotas for women on boards.
and in footnote 14 points out that:
That is not to say that the UK might not choose to legislate on these matters domestically; however, this would be a matter for the UK Parliament.
Quite so, I couldn’t agree more. What is puzzling, however, is what comes next:
A reasonable compromise between access and regulation might resemble the trade-off offered to members of the Eastern Partnership, who are expected to adopt approximately two-thirds of the acquis communautaire, though a successful negotiation could reduce the burden of regulation still further.
By most measures, two-thirds is more than the EEA countries are currently saddled with. But Mansfield has said previously that he doesn’t want to join the EEA, to avoid having to be forced to adopt all the Single Market regulation. So this doesn’t make sense, to me at least. But I will try to find out more about the Eastern Partnership, to which Mansfield refers, to see if I can understand what he is trying to get at.
(To be continued).