Wednesday, 8 November 2017
Brexit: configured yet configurable
I wrote yesterday about the EFTA position and the simultaneously configured and configurable nature of the Single Market. I drew attention to the country-specific protocols which have been bolted onto the EEA Agreement and explained how an EFTA Brexit allows the UK, in effect, to leave the European Union without becoming a third country.
Inevitably, when I write about the Norway option, I am met with criticism by many on the Leave side who feel there is nothing that can be done about the free movement of people (which I feel obliged to remind them is in reciprocal fashion their freedom to move also). This is an interesting topic which I feel has not been explored sufficiently by mainstream media channels who prefer to paint immigration as a simplistic issue, as if it is void of any complexity.
Reality, though, tells us this isn't true. Immigration is not just about points and numbers. It is also about international laws governing asylum policy and human rights, the accommodation of relatives of established migrants and mechanisms for tackling illegal immigration without allowing the state to become too overbearing on the individual. The right to 'family reunion' is a particularly prominent driver of immigration to Britain.
We need to find ways of distinguishing between EU and EEA regimes on immigration: the Single Market does not offer uniform standards on free movement rules which apply symmetrically to both EU and EFTA member states. Then there is the problem of extricating certain groups of people from figures, such as students and asylum seekers. For obvious reasons, there needs to be some perspective here. Migration figures (which are collected dubiously, through the use of passenger surveys no less) are easily blown out of proportion, so communicating these issues in a way that is coherent is vital.
On immigration, I take the precursory view that if Tony Blair had exercised the use of available transitional measures, in accordance with Article 8 of the 2003 Treaty of Accession, when formulating British policy towards the inclusion of the eight former communist countries into the European Community, there would not have been a referendum on membership of the EU in 2016. This point was not raised enough during the referendum by the Remain side and indeed was largely overlooked by Leave voters too.
This is quite a powerful statement and I stand by that belief. In this regard, committed eurosceptics like myself owe him quite a lot for his lack of foresight. The last Labour government did not fully consider the impact that this policy would have on changes to public opinion. Regardless of your opinion on the issue of immigration, it was a domestic decision for the A8 controls to be waivered and Brussels cannot be blamed directly. And since then, all subsequent figures and trends have been distorted inappropriately.
I am not saying that reshaping immigration policy is not an argument for Brexit. I explicitly said that it was at this blog only the other day. But it depends on how we go about doing this. No country has complete control of its borders and presenting Brexit as a means to achieve this is irresponsible and misleading. We can't monitor everybody and we will need to abide by international commitments on migration and asylum if we want to steady our rocky diplomatic standing. Image is very important at global forums.
My ideal immigration policy would steer away from the idea of points and quotas. I think such systems are slightly discriminatory and relatively inflexible. I prefer the sound of an immigration policy which is fundamentally rule-based, but without the rigidity of arbitrary caps, points or quotas. They are also intellectually flawed in that we would end up viewing a certain number of immigrants as being acceptable but a few more not so. Missed targets may also add fuel to the fires of xenophobic pockets of the country, stoking anger and frustration when reported on.
The world we live in is complex and we must work with what we have at our disposal. I can't conjure up my utopian vision of what British immigration policy ought to be because I simply wouldn't be able to account for every caveat and legal requirement. So the argument being offered against the Norway option, being that we cannot provide full control of our borders, is slightly suspicious from the get-go. But that does not mean we have nothing of use to us.
Inside EFTA, the regime on free movement shifts slightly. Importantly, what we find embedded within the EEA Agreement are 'safeguard measures'. These are described in Article 112 and expanded upon in Article 113. I would advise readers to read the following excerpt.
Article 112 allows, upon short notice, unilateral suspension of any of the four freedoms given formal and reasonable justification and followed by a period of consultation with the EEA Joint Committee. What form the suspension takes, including how long and what policies emanate from it, are up for discussion. The point here is that upon invoking this article, a political process is underway. We can from here look towards leveraging a deal on reform, or making changes to existing EEA regulations, which are already enshrined within UK law.
EU membership requires unanimity in this context. All members of the Community must agree to a member state's ability to invoke the article, which given the size of the club appears more than unlikely. EFTA, being merely the trading bloc the EU once pretended to be, demands no such supranational requirement. Here we have a prime example of what I described in my opening paragraph: configured yet configurable is the EEA, taking into account the interests of the countries which are added to it.
In an interview with Business Insider, I admitted that Liechtenstein's use of Article 112, which permitted them a quota-based system of immigration, is unlikely to be replicated by the UK. We are a much larger country and economy, with a different geographical character and different labour needs. Stephen Kinnock and Keir Starmer have made the argument that we can have the same, but I think they are naive in this respect. If we do manage it, which I don't rule out, then great. We'll have our cake and we'll be eating it. If not, it's not the end of the world and there are other things we can do.
Often when the issue of invoking Article 112 is raised, critics claim that it is for emergency use only. This is not true and Article 113 (3) clearly shows that there are emergency safeguards within the safeguard measures, rendering this argument completely and utterly redundant. Have a look at page 34 of this European Council statement. Senior EU leaders already believe we are justified in using it, which may put some minds at rest.
In treaty terms, safeguards and so-called 'waivers' are crucial. They provide a degree of flexibility where real life challenges threaten the integrity of general provisions. Article 112 can, I believe, be used as a valve of pressure relief. It needn't be permanent and I think the general turbulence caused by Brexit will see migration decline regardless. We may arrive at a situation where, simply by leaving, the numbers begin to dry up. On this issue, the devil is in the detail. We aren't looking at simplicity and leaving the EEA will not accomplish everything we expect it to.