Thursday, 3 August 2017

Brexit: rejoining EFTA can barricade against constitutional paralysis

Another day has passed and another plea has been made for a second referendum on Britain's relationship with the European Union. This time, writes Vernon Bogdanor, a professor of government at King's College London, "with a deadlocked parliament, the possibility of an unfavourable deal and both parties so deeply divided on Europe, it may start to appear that the only way out of the impasse is a second referendum in which the government’s deal is put it to the people for legitimation."

But for a lazy comment about influence, which I shall explore below, his piece is actually quite a good one. I would advise readers to read it. Bogdanor makes quite a few interesting and thoughtful points whilst avoiding the usual disdain and name calling which lace that newspaper. I think he is correct, for instance, when he warns firstly that:

"the election intensified internal divisions in both major parties. If the eventual deal is too “hard”, Conservative remainers may join with their opposition counterparts to defeat it; if too “soft”, Tory Eurosceptics could ensure its rejection. There may be no majority for any of the forms of Brexit on offer, with the Commons deadlocked."

...and secondly:  

"the House of Lords – in which the pro-remain Liberal Democrats and crossbenchers hold the balance of power, and the proportion of remainers is probably even higher than in the Commons – will feel emboldened to reject a hard Brexit, arguing that a minority government has no mandate for it."

These two observations are worth paying particular attention to because they are likely to manifest into attempts to stop the wrong kind of Brexit. The latter point exposes once again the lunacy of holding this year's snap general election. A second referendum, one on the terms which eventuate from, I presume, a trade agreement, means constitutional paralysis in the event of voter rejection. There is no other way of describing what such a thing would entail. A Free Trade Agreement between the UK and the EU, which I have already argued against, will not be finalised within the Article 50 period, and perhaps not even within an extended period allowed by unanimous vote in Brussels. 

Philip Hammond has already shed some light on the sort of scenario that will arise. We will probably end up agreeing a very brief transitional arrangement, likely continuing freedom of movement, whilst negotiators attempt to come to terms on an FTA (which will worsen our trading terms and thus damage the economy). The issue is that once eventual terms are concrete enough for parliamentary scrutiny, both Houses will do their utmost to recommend abandoning the 'hard' Brexit course. If Tory divisions prove bothersome for the government, and the signs are that coalitions with Labour MPs are already brewing, the Commons will have an incredibly tough time passing into legislation the new deal with the European Union. The Palace of Westminster is crammed full of euro federalist ideologues at the best of times. Making them swallow both Brexit and leaving the single market (they aren't the same, remember)? Good luck with that one. 

And Brexiteers can hardly complain. Our insistence on affirming parliamentary sovereignty means that we cannot, without appearing hypocritical, oppose rigorous scrutiny. One of the purposes of leaving the European Union, after all, was to strengthen parliament's role in British lawmaking. To argue that such major legislation be passed through without the inspection of elected officials is to undermine one of the most basic purposes of leaving the EU. This process will be difficult enough without us abandoning our principles along the way. 

Not only that, but the Lords, I know, will be almost impossible to convert to the hard Brexit cause. I can see it now. They overrule a complacent and reluctant Commons (assuming the Commons agrees to a single market exit, that is), the Farage crew call for abolition of the Upper House and we're back to square one again. Now I understand why the people may have to be called upon once more. Our sovereignty it may be, but I wouldn't even attempt to predict whether the terms of a non-EEA exit deal would be accepted. Remember, any such referendum would be put to the electorate as a whole, not just those in favour of leaving. 

What most worries me is that I can see all of this happening in slow motion. This is why I have recently been pointing furiously to an alternative. We had trouble with parliamentary forces in the run up to the invoking of Article 50. I can only imagine how combative they'll be next time around. All of this is another reason why I think rejoining EFTA could be a useful barricade against constitutional immobility. The threat of the terms of exit being rejected, either by Westminster or by popular vote, is a very real one. And what is more, nobody seems to have any idea what to do if it happens. I suspect Number 10 would in such an event try to cobble together some kind of association agreement with the European Union. But that's anyone's guess. 

I am, though, confident that neither MPs nor Peers would reject rejoining EFTA. This is largely because the primary worry about leaving the EU has always been the economy. Politicians are terrified of economic collapse under their watch. It is why governments tend to back status quo options in plebiscites. EFTA is, by any measure, the most reasonable and sensible political compromise to such an enormous issue. It is true that many Leavers will not like it, but they'll like Brexit never happening even less. Not only did hard Leavers present no plan for leaving the single market, they also presented no plan for the possibility of the terms of exit being jettisoned. It is why I asked them, in an open letter at this blog over the weekend, to support what I regard as the only workable option. And on that note, more on freedom of movement inside the EEA will be written here in the coming days. 

As I noted earlier, Professor Bogdanor also becomes the latest in a long line of people who believe that to be a part of the EEA without being a member of the European Union necessarily means to lack influence. I have previously demonstrated how this is totally and utterly spurious. EFTA members, unlike their EU neighbours, directly influence the single market acquis at the very top tables. And yes, by top tables I mean top tables. Not Brussels, which is as much the top table as I am a fan of Eddie Izzard. 

Regulation has been globalised along with most other facets of the world. The WTO, ISO, CODEX and UNECE are largely responsible for shaping the EEA's regulatory framework. EU members do not represent their own, individual interests at global level. EFTA states do. This is what is fundamentally overlooked in the influence debate. Looking at things in terms of the single market, Brussels has become largely (though of course not wholly) a wholesaler, passing on what it picks up at international level. Formalising the process of detaching the European Union with the EEA acquis has to stand as one of the purposes of Brexit, though that isn't to say that it'll be easy or entirely achievable. But on our side at least is the fact that it's already happening. Which is more than can be said for Brexit if we continue on our current trajectory. 

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