Time is running out for UK’s Brexit ‘options’ other than "deal or no-deal" in light of a united European front

For some time, we have been advising that UK is facing a binary choice – the ‘deal’ that has been negotiated and agreed with the 27 remaining EU nations together with all of the central EU agencies – or a cliff-edge ‘no-deal’ Brexit on 29 March 2019.

The binary nature of the choice was this morning, 27 November 2018, all but endorsed by a hearing of the highest judicial body in the EU – the European Court of Justice.  Although the judgement will not be formally released until after the vote in the House of Commons in 2 weeks’ time, it looks all but certain that they will say that it would take a unanimous vote by the collective Heads of EU States for Article 50 to be withdrawn.  Brexit cannot be stopped at the request of the UK alone – even if there were a General Election and an anti-Brexit majority of MPs be returned to Parliament – or a People’s Vote strongly in favour of remaining now that the alternatives are clear for all to see and that led the present Government to respond accordingly.

 We look at the most talked about ‘alternatives’ to the 2 stark choices - ‘deal’ or ‘no-deal’ - that have been most discussed – and briefly explain our conclusion on why the options are so much reduced.

Meanwhile, keep planning for a ‘no-deal’ – it is not wasted effort, it’s a question of when, and not if, it will be needed. 

The ‘Norway’ model – an alternative to the Withdrawal Agreement and Political Declaration

Those arguing for a ‘Norway’ model want the UK to scrap the planned transition period starting in March 2019 and instead immediately enter the European Economic Area (EEA) - a common market binding Norway, Iceland and Liechtenstein with the EU and the European Free Trade Association (EFTA).

This would mean Britain “effectively remaining inside the single market and customs union until a relationship could be agreed that avoids a hard Irish border”.

It’s about as close to the EU as you can get without being a member state.  In practice, Norway has full access to the single market, and very limited barriers to trade with the EU.  However, in return, EEA member countries have to make substantial contributions to the EU budget, and to follow most EU rules and laws including the four freedoms: the freedom of movement of goods, services, capital and people.

As such, and EEA relationship with the EU “has elements that wouldn’t deliver on the vote of the British people”, according to Theresa May during her visit to the Norwegian capital this week.

And European commentators also have concerns about the EEA model including Jean Claude Piris, former Director-General of the EU Council’s Legal Service:  firstly, neither the EEA nor the European Free Trade Association (EFTA) are open to a temporary membership, and that he doubts: “their members would accept such a change”; secondly, it would be impossible to achieve a Norway model status by Brexit day in March, as UK candidacies to both organisations could not be negotiated before that date.”

Reverse Article 50 and remain in the EU

The Scottish courts referred the question to the European Court of Justice (ECJ) in Luxembourg for an emergency hearing of an application brought by a cross-party group of six Scottish MPs, MEPs and MSPs, along with Jolyon Maugham QC, the director of the Good Law Project.

This was heard today, 27 November 2018.

Article 50, once enacted, imposes a two-year time limit on the departure from the EU. It is due to expire on 29 March 2019.  The question asked by the Scottish petitioners is: “whether, when and how” the article 50 notification “can unilaterally be revoked” by the UK?

The EU’s lawyers argued that the UK’s decision to leave the bloc cannot be unilaterally withdrawn, and that European Government had to unanimously agree to any move from Britain to reverse its decision to leave the EU.

Hubert Legal, the European Council’s top lawyer, insisted that unlike the voluntary decision to trigger Article 50, cancelling it would require the unanimous support from all 27 governments in order to protect the interests of the EU as a whole: “There is no parallel between the right to notify and the right to take back.”

He said: “National processes cannot suffice to pull the carpet on which everyone has been forced to stand on.”

The core of the EU’s argument is that allowing a government to cancel the exit process would encourage member states to abuse the process in order to gain concessions from the bloc on better terms of membership.  In such a situation, the two-year clock that is started under Article 50 would be transformed from a process to organise a country’s exit, into a negotiation to “charm the notifying sheep back to the flock” on terms that would weaken the EU project.

The UK Government legal representative argued that the petitioners were seeking to use the ECJ to get “political ammunition to pressure the UK parliament”.  According to Lord Keen of Elie, QC for the UK government: “Pandora was given a large box on her wedding which she was told not to open… we respectfully plead the court should not open this box”.

John ShuttleworthComment