Brexit hack: Just join EFTA

Guest contributor Josh Hitchens gives his view on why joining the European Free Trade Association might just be the solution to Britain’s Brexit woes…

Photo: (c) Shutterstock

Photo: European Court of Justice. (c) Shutterstock

A few weeks ago, I was on a trip to Luxembourg with my Inn of Court to meet EU officials, visit EU institutions and get a sense of the legal implications of Brexit. The most illuminating day of the trip was the day we visited The Court of Justice of the European Union (ECJ) followed by the European Free Trade Association (EFTA).

This enormous court has a caseload far smaller than the High Court in the UK, a budget the size of London Fire Brigade, employs 2,500 people and is housed in the most opulent of buildings, decked out with modern art installations, designer interiors and subsidised gucci cafes for staff and visitors. I spent much of the morning sitting in the appropriately named Grand Chamber, a sci-fi-like courtroom that felt more like an imperial capital than a court of law. The advocates had a strictly enforced 15 minutes to argue a case that would have been allocated several days in the Supreme Court.

I couldn’t help but think of the crumbling and chronically underfunded courts in the UK and many other member states while gazing at this beautiful room’s post-modernist architectural features, the army of staff and attendants, the plush decorative features, all paid for by an institution that hasn’t had its accounts signed off for years.

This disillusion was reinforced through the rest of the day. Our first meeting involved hearing a member of the ECJ proudly boast how the ECJ’s general court spent half of its time reviewing decisions of the UN Security Council and ordering member states and EU institutions not to enforce resolutions they didn’t think passed muster. ‘But where did you get the authority to review such decisions?’ I asked. He replied ‘From the Kadi case, of course (an ECJ judgement)’. ‘So from yourselves essentially?’ I asked, quizzically. With a wry smile she simply replied ‘yes, I suppose so’. This bizarre example of judicial overreach has meant that even though two democratically elected EU member state governments are permanent members of the UNSC and every member of the EU has affirmed its commitment to the UN Charter, there are several UNSC resolutions which are complied with by every country in the world other than members of the EU.

Anyway, upon leaving the palatial ECJ, we headed around the corner to EFTA. When I arrived, I knew nothing about this little organisation sometimes described as ‘the Norway option’ but by the end I was convinced it was the only Brexit option that can satisfy Brexiteers while not plunging us into an economic hole or diplomatic isolation. The little institution encompasses 5.5 million people from Norway, Liechtenstein and Iceland and has a series of bilateral agreements with Switzerland, which is closely aligned to the block.

Upon arriving at EFTA, I was struck by the contrast with the ECJ. The EFTA Court is situated in the basement of an office building in the EU ghetto of Luxembourg. It employs 25 people, has one working language, English and a total of 3 permanent judges. It takes 9 months to make a decision (The ECJ takes 18 months) and its judgements haven’t been subject to the criticism from academic lawyers that ECJ judgements have.

Joining EFTA provides us with access to the single market, meaning tariff-free access to our 500m fellow Europeans. However, it would not tie us into the customs union. This allows EFTA countries to formulate trade agreements with other countries around the world. For example, two of the tiny EFTA nations already have trade deals with China while simultaneously also having unrestricted access to the single market. With Britain’s Commonwealth ties and excellent Foreign Office, it is uniquely positioned to benefit from the ability to formulate trade deals with other major economies while also being a member of the European Economic Area.

As importantly, EFTA membership gives Britain a say in the writing of rules that govern the single market. At the moment this is confined to the commission stage and an EFTA-EU committee that deals with implementation of legislation. However, the Delore’s Declaration envisaged EFTA Countries having a seat on the council of ministers, something that may well be achievable if Britain were to throw her diplomatic weight behind the block.

EFTA membership also ensures UK compliance with much of the European legislation that protects the environment, citizens and consumers. However, crucially, this is enforced by the much less assertive and overreaching EFTA Court rather than the ECJ.

The EFTA staff we spoke to estimated that the cost to the UK exchequer of membership to EFTA would be around half of what we currently pay to the European Union. However, Britain would retain the right to ‘buy in’ to European Union projects. This would allow us to participate in the Erasmus program and maintain our membership of Europol or the European Arrest Warrant if we chose. This deals with the very real security concerns surrounding Brexit.

Membership of EFTA frees the UK from many of the aspects of the EU that drove the Brexit vote, social and political union would be abandoned, ever closer union is explicitly excluded by EFTA treaties and the UK’s relationship with Europe would return to one of collaboration, rather than integration. It would be based exclusively on trade and economics rather than the political and social elements of the Union that have proved so controversial.

Finally, we have 20 months to complete the most complicated constitutional change we have undertaken for nearly half a century. As it stands, Brexit is likely to require 15 Acts of Parliament and any deal will require the assent of the 27 other national parliaments as well as regional parliaments such as Wallonia. Quite simply, a hard Brexit may simply not be deliverable. Joining EFTA is much more achievable. It requires the assent of the 27 other Governments of the EU as well as the three EFTA Countries but no votes of national parliaments. It also would also require far fewer Acts of Parliament in the UK.

But, for me, the strongest argument for joining EFTA is that it represents a clear statement of intent. By submitting to a supervisory body, committing itself to tariff-free trade with Europe and the enforcement of universal standards, the UK would be asserting that despite Brexit, we remain an internationalist, outward looking country. It would involve the retention of free movement of workers which would both reassure EU citizens who have made their lives here and British businesses. It would provide an institutional framework for cooperation with 27 nations that we have deep and abiding ties with as well as many shared interests. It would also maintain British global influence and protect our economy. However, it would do all this in a way that didn’t override the will of the people expressed last year or stir up discontent amongst Brexiteers.

Josh Hitchens is a pupil barrister and member of Lincoln’s Inn. He has previously worked in Parliament and written for the Telegraph. You can follow Josh on Twitter @joshhitchens_uk.

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