Friday 8th December was supposed to be the day hard Brexit died.
To get the talks moving onto the second phase, the government agreed to “maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”. The breakthrough deal had shifted the default Brexit position from a no-deal cliff edge to European Economic Area (EEA) membership, plus an agreement to mimic the EU Customs Union.
You’d think this would be cause for celebration for those who worry about what suddenly dismantling forty years of economic integration might mean for our supplies of food, medicine and everything else. But, having assumed the battle won, it did not take long for many on the Remain side to join in with Nigel Farage in arguing that we’d be “staying in the EU in all but name” with “no say” in the rules.
A quick Twitter search for “Norway” and “no say” will bring up a chorus of similar comments from both sides.
These claims contain an element of truth. Norway does not have any MEPs, nor voting rights. One can make a solid case that Norway has less of a say in the EU’s legislative process than EU member states – a claim made by many Norwegians. But the claim that Norway must take “all the rules, but with no say” is false.
As a member of the EEA and European Free Trade Association (EFTA) Norway indirectly participates in EU law-making through technical committees, with it experts being consulted throughout the legislative process. As Article 99 (1) of the EEA Agreement explains, as soon as the European Commission begins to draw up new legislation, they informally seek advice from experts of the EFTA States.
According the EFTA website, experts are invited by the Commission, not as representatives of individual states, but on the “on the basis of their professional qualifications”. Norway, Iceland and Liechtenstein are then able to help shape decisions by submitting “EEA EFTA comments” during the “continuous information and consultation process”.
Clearly, even without voting rights, Norway has some “say” in the rules it adopts.
But Norway is not legally obliged to adopt those rules because it can veto the incorporation of new EU law into the EEA Agreement through its “right of reservation” – but not without risk. Norway voted against incorporating the Third Postal Directive in May 2011, which prompted the EU to threaten Norway with exclusion from parts of the single market. Then, following a change of government, Norway decided to implement the directive in November 2013. In the end, parliament must decide whether or not the trade-off is worth it.
Finally, unlike the UK, Norway is not bound by the EU’s “common position” at the various global standards bodies, and thus has a greater “say” at the international level. Indeed, there has been at least one instance where the UK was forced to ask a non-EU state to submit a proposal – intended to save UK jobs – on its behalf at the International Maritime Organization (IMO), because the Commission forced the UK to withdraw all support for the proposal. This could not happen to Norway.
The question of whether or not we should give up voting rights at the EU level for an indirect role in the EU legislative process (which would include a veto on new EU law), is an open one. Both sides have their merits.
But, everyone, especially Remainers, should be honest about what the Norway option delivers, because it is by no means the default Brexit, despite the phase one agreement.
Later the very same day the deal was done, a senior official at the Department for Exiting the European Union reportedly said the commitment applies only to “transport, agriculture, education, health, environment and tourism” – not the entire EEA acquis. The claim was then repeated by David Davis on live television, confirming what some had suspected: full alignment does not mean full alignment – to the government at least.
The issue of how to prevent a hard Irish border has thus been kicked into phase two. The government still thinks it can maintain frictionless trade (its cake) and have room to diverge from the EEA acquis (and eat it), while the EU and the Irish Republic disagree. There’s every chance the talks could break down over this fundamental difference.
With the possibility of a 'no-deal' still alive and well, and with serious decisions yet to be made, spreading the notion that Norway is an EU vassal state, submissively taking all the rules with no say whatsoever, only tips the scales toward disaster. Those who engage in this folly are only doing a favour for the hardest of Brexiteers, and should beware the law of unintended consequences.