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Norway’s EU Lessons — How Transferable Are They to the UK?

Norway’s EU lessons – How Transferable Are They to the UK?

John Erik Fossum (ARENA, University of Oslo)

Hans Petter Graver (Department of Private Law, University of Oslo)

The purpose of this short blog entry is to consider the transferability to the UK of some of the lessons from Norway’s EU experience, as these were presented in our recently published book, Squaring the Circle on Brexit – Could the Norway model work?

There are close historical and contemporary links between Norway and the UK. The UK is Norway’s largest single state market for goods and services. Norway provides one-third of the UK’s annual consumption of natural gas. In addition to tight links and interdependence the situation of Brexit has brought up some other interesting parallels. Among the three members of the European Economic Area (EEA), Norway is the only one that has actually rejected EU membership in a popular referendum. It did so twice, in 1972 and 1994. Of particular relevance to the current circumstance of Brexit is that Norway signed the EEA Agreement with the EU (which entered into force on 1 January 1994) before the popular referendum that rejected Norwegian EU membership (28 November 1994). The UK and Norway were therefore both incorporated in the EU’s internal market before their respective referendums rejecting EU membership.

For Norway, that meant that whereas the referendum question asked whether Norwegian voters would vote yes or no to EU membership, there were actually not two but three underlying options: a) yes to Norwegian EU membership; b) yes to the status quo of retaining the EEA agreement; or c) voting no to EU membership and simultaneously rejecting the EEA. The referendum result did not discriminate between those voting no because they were only rejecting EU membership, and those voting no because they also wanted to abolish the EEA agreement. In the UK case the ambiguity is on the yes to Brexit side, but in both cases the underlying options were underdetermined: the yes vote to leave the EU did not require the government to pursue a specific form of Brexit, since the government had not clarified what voting yes would entail in terms of the UK’s future relationship to the EU (such as whether the UK should pursue a soft or hard Brexit).

Thus, the UK and Norway face a similar dilemma, even if their relations with the EU proceed in different directions. For Norway it has been about increased EU rule and norm incorporation, whereas for the UK it is about dismantling its EU affiliation, including the EU rules and norms that so extensively programs its legal and political systems and society. In effect, all affiliated states, and in particular the closely affiliated ones (which enjoy assured access to the EU’s internal market), face a “trilemma” in their relations with the EU, which refers to the need for balancing effective external governance (ability to influence externally generated rules and norms); assured market access; and popular support and legitimacy.

What are Norway’s lessons?

One important lesson from Norway is that the EU is a political system based on the rule of law, which profoundly affects the EU’s relationship to non-members. The closer relationship they seek, the less scope there is for bargaining. The question is whether the UK with its far greater power and international salience will manage to get more wiggle-room and negotiate a superior arrangement to that of Norway. How much of its power can be transferred into the bargaining process in pursuit of a set of bespoke arrangements? The problem for the UK is that the more it stresses independence from the EU, the greater are the demands from business, nations (Scotland and Northern Ireland) and citizens (especially EU citizens and young people) for EU access and rule and norm predictability. Conversely, the more the UK seeks continued EU rule/norm alignment, the more vulnerable it is to criticism from Brexiteers for reneging on the promise to regain control and betraying the vote in favour of Brexit.

If it is the structure of the relationship (and not the specifics of formal agreements that states negotiate with the EU) that matters most, then the issue will be less about the bargaining strength of the UK and more about what the EU does. If the EU is able to sustain a united front throughout the (presumably quite lengthy) negotiations on the EU’s future relationship with the UK, and stick to the rules in place, the UK will face difficult choices. This is not only a political issue within the EU; it is also a legal issue. The CJEU has power to restrict the room for political manoeuvre in the EU’s dealings with third countries, a power it has used several times, such as when negotiating with the EFTA countries and when considering accession of the EU to the European Convention on Human Rights. The court also sets the conditions for accepting outsiders into the internal market, as we have seen in its case law on Switzerland.

Difficulties mount up if tensions arise inside the UK, from opposition parties, or from devolved nations. If the EU fails to sustain a united front and starts making concessions to the UK, these will percolate through the EU system and may generate internal dynamics in the EU that the UK can utilise to its advantage. Nevertheless, the main lesson we can derive from the manner in which states structure their associations with the EU is that the key determinant is the EU, not the UK.

A second lesson from Norway has been the dynamic nature of EU rule adaptation and the need for predictability. For the UK post-Brexit, EU rules and norms will be entrenched in the European Union Withdrawal Bill. That will repeal the European Communities Act of 1972 (ECA), which constitutes the legislative underpinning of the UK’s EU membership. At that point, EU law in place in the UK becomes UK law. This legal structure is similar to that of Norway within the EEA in the sense that the Withdrawal Bill sets up a structure that is highly conducive to ongoing norm adaptation. It ensures that EU law in the UK is no longer handled from the EU level, but from the UK level. This gives a very special twist to the notion of ‘taking back control’, because it underlines the need to consider issues of control not merely in the light of bargaining processes and outcomes but in terms of the dynamics of norm and rule adaptation. Reasserting control for the UK then means going through this enormous volume of regulations and directives, and determining which ones should be altered, and which ones should be kept.

An important aspect of Norway’s situation is that the implementation and application of single market rules in Norway is monitored by EFTA as part of the EEA Agreement. This ensures equivalence to the monitoring within the EU by the Commission and the Court of Justice, and is a precondition for the functioning of an internal market throughout the whole EEA. The internal market is not only about common rules, but also about mutual trust, brought by credible mechanisms for monitoring and control. The EEA agreement also provides for institutional mechanisms to enhance a timely updating of the agreement as the rules of EU’s common market change.

Rule adaptation is for Norway a constant through the dynamic nature of the EEA and the Schengen agreements; for the UK it takes on a new shape after Brexit. In any case, both the UK and Norway face rule adaptation as a fact and as intrinsically related to the large body of EU law that they have already incorporated and that informs the operations of their political and administrative systems. The question is what difference it will make that the UK incorporates EU law directly into its domestic system at the very same time that it gives up its share of control over the making of EU laws. One difference from Norway’s situation is that without an institutional provision to address it, there will not be a setup where the EU and the UK routinely agree on changes that the UK undertakes to make in its legislation to reflect changes in EU law. Another difference may stem from how the UK changes the role and status of incorporated EU rules through the Withdrawal Bill. The Europeanised element of UK law will get increasingly out of sync with EU rules and norms, heightening uncertainty. The UK will still, as does Norway, face strong domestic pressures for retaining as much rule contiguity as possible. Since the single market is a seamless web, that pressure will work across issues. The UK will have to deal with the conflicting pressures for EU norm conformity and domestic divergence as an ‘insider’ in relation to EU rules and norms, because it has been so extensively EU programmed.

A third lesson from Norway pertains to the manner in which the stress on internal sovereign control on the one hand reinforced the executive and on the other shifted to conflict management through depoliticising the EU adaptation process. In Norway, the deeply politicised issue of EU membership, a core constitutional issue, was contained and not permitted to intervene in the rapid and dynamic process of EU adaptation. In the UK, an almost opposite politicisation logic has unfolded: single issues have been linked to the EU membership issue. The very different politicisation–depoliticisation dynamics in Norway versus the UK are bound to show up in the UK’s EU relationship. It appears very unlikely that the UK political system is going to be able to curtail or contain political conflicts in the way Norway has done.

The UK political system is politicisation-prone: the political style is quite confrontational, intensified by a first-past-the-post electoral system that usually allows the largest party to take all power with the result that the costs of losing are unusually high; and a highly confrontational tabloid press (in particular on EU matters). In contrast, the Norwegian political system is marked by a very high trust in government; a strong consensus-seeking political culture; a proportional electoral system that never produces single-party majority governments; and a far more facts-oriented media scene. The UK is therefore unlikely to achieve a similarly depoliticised relationship with the EU, which means overall a less predictable relationship.

A fourth lesson from Norway is the strong element of executive dominance. The experience with the Brexit process thus far shows that the government has tried to keep it an executive-led process. There has been fight-back from legislatures, especially with regard to the Withdrawal Bill. The manner in which the Withdrawal Bill process is conducted and what it will amount to in terms of executive law-making will be of great importance for the future functioning of UK parliamentary democracy.

A fifth lesson from Norway is the need to sustain open borders. The 1630 km long Norway-Sweden border has been open for 200 years. When Sweden entered the EU, Norway could only keep it open through affiliating with Schengen, which meant that Norway would be inside the EU’s external border with responsibility for border controls. Had Norway opted to stay outside of Schengen doing so would have undermined the Nordic Passport Union. In the UK context, the political importance of maintaining the Northern Irish border open is even more apparent, but in both the UK and Norway cases there are political as well as economic reasons for keeping open borders.

Sixth, both Norway and the UK exhibit a strong gap between facts and norms in the realm of sovereign control. There are different politicisation dynamics in the UK, which are likely to affect the relationship between substantive and symbolic politics. In Norway, the strong membership opposition was kept separate from and did not affect policy substance (read rapid and dynamic EU adaptation in a broad range of policy fields). In the UK the government will probably face a far more difficult task of trying to bridge the gap between the reality of interdependence and the strong normative attachment to sovereign control. In Norway, politicians were able to manage this without addressing the EU’s justifications; that seems difficult for the UK.

Finally, the Norway case shows that Brexit is not only about the state’s mode of EU affiliation (soft versus hard Brexit; bespoke or off-the shelf arrangement); it is equally a matter of which socio-economic model that the ex-member state adopts. In that sense there is an important left-right dimension to the Brexit issue. Since Norway has retained a far more developed welfare state and generally speaking a greater state presence in society, an important lesson from Norway is that it matters a lot how a state handles its EU relationship. On this point it appears that the UK is very unlikely to emulate Norway on the degree of trust in government and in the broad compensatory socioeconomic arrangements that Norway uses to buffer against various types of negative Europeanisation and globalisation effects.

This brief assessment suggests that the different circumstances surrounding Norway and the UK will not simply revolve around differences in bargaining strength, but in terms of: how the UK works out the relationship between the pressures for continued rule and norm adaptation; how it manages the contingent and complex process of bargaining; how it relates to the normative principles and values involved, including political grandstanding/symbolic politics by all kinds of actors; and whether it develops socio-economic compensatory and buffering measures.

John Erik Fossum is Professor at the ARENA Centre for European Studies, University of Oslo, Norway. Professor Fossum has authored or co-edited 14 books, several journal special issues, and numerous articles and book chapters.

Hans-Petter Graver is Professor of Law at the University of Oslo, Norway, and former Vice President of The Norwegian Academy of Science and Letters. Professor Graver has written more than 10 monographs and more than 100 articles in peer-reviewed journals and edited volumes.