The Narrow Road to the Deep North: A Norwegian Escape Route for Post-Brexit Britain?
Ciarán Burke (Friedrich Schiller Universität, Jena)
“I am pro having my cake and pro eating it,” remarked Boris Johnson when explaining his Brexit stance in the spring of 2016. Three years later, the recipe for a digestible Brexit cake, which remains intact as one consumes it, is still elusive. On Tuesday, UK MPs defeated Prime Minister Theresa May’s proposed withdrawal bill by a margin of 432 to 202 in the House of Commons, with more than a third of her own party voting against the motion. After nearly two years of painstaking diplomacy, the ‘mother of parliaments’ unequivocally rejected the settlement reached by Her Majesty’s government with its soon-to-be-erstwhile European partners.
This defeat is remarkable for a number of reasons. Firstly, it is the largest defeat for a government motion in the history of the Commons, dwarfing even Ramsay McDonald’s 1924 reverse over the J.R. Campbell case (which, it might be noted, also involved a disputed trade deal). Secondly, it illustrates that Prime Minister May has completely failed to gauge the prevailing sentiment in parliament as a whole, or indeed, in her party. Thirdly, it leaves ten weeks to find a solution before the UK leaves the Union on March 29th. Given that Greenland’s exit from the then-EEC in 1985 required two-and-a-half years to negotiate, and given the population, importance and status of the UK compared to Greenland, two-and-a half months is unlikely to be sufficient to negotiate an entirely fresh exit agreement. However, the sheer scale of the defeat in Parliament indicates that mere adjustment of the draft withdrawal deal is unlikely to appease the substantial corps of dissenters, while substantial changes thereto are unlikely to pass muster with the EU 27.
While there may be scope for the EU 27 to agree to extend the Article 50 deadline, initial indications are that such an extension will end in July, which is unlikely to allow sufficient time for renegotiation, particularly with the UK government in its present state of disarray. In such circumstances, the appeal of an alternative, off-the-shelf solution, based upon existing EU co-operation with third countries is clear. Obviating the necessity to restart negotiations tabula rasa, while providing a model entirely detached from the apparent toxicity of the existing deal might provide a narrow road out of the current impasse.
One option that has previously generated discussion in this regard is the so-called ‘Norway’ model. Norway, with Iceland and Liechtenstein, maintains close association with the EU via the European Economic Area (EEA) Agreement, which includes the three EFTA/EEA States and the EU Member States in a common internal market. The agreement contains rules on the EU’s four freedoms and competition law, which are further developed via secondary law.
Following the Norwegian model would provide facilitated, though not entirely unfettered, access to the EU’s market, on the basis of rules effectively identical to those in the EU concerning free movement of goods, services, people and capital. This entails that most existing rights and obligations would continue to apply, solving the lion’s share of the legal problems thrown up by Brexit. The EEA Agreement has not been altered since it was signed in 1992, reflecting EEC law as it was in the early 1990s, before British Euroskeptics began to demand successive opt-outs. As such, many of the unpalatable areas of EU law (including EU citizenship) are absent. The EU’s Common Agricultural and Fisheries Policies are excluded, meaning that the UK could take back control of its fishing waters. The EEA Agreement lacks the problematic goal of an “ever-closer union of peoples”, and does not share the commitment to a new political community.
The UK would further free itself from the supervision of the European Court of Justice and the European Commission. The EEA/EFTA states are subject to the jurisdiction of the EFTA Court, but the latter does not include the principles of supremacy and direct effect in its arsenal. Rather, it makes liberal provision for harmonious interpretation of domestic law with EEA law (Case E-1/07 Criminal proceedings against A, EFTA Court Report para. 39 (2007)), the supremacy of implemented EEA provisions over other domestic legislation, (Case E-1/01 Einarsson  EFTA Court Report 1, para. 50) and, as a last resort, state liability (See Case E-9/97 Sveinbjörnsdóttir v. Iceland, EFTA Court Report 95). The agreement makes clear that it does not involve a transfer of legislative powers, thereby restoring sovereignty to the UK Parliament.
The Agreement contains no common trade policy towards third countries; the EFTA States remain free to conclude treaties and agreements with third countries in relation to foreign trade, allowing the UK to take back control of its trade policy vis-à-vis non-EU States. However, this also entails that the provisions concerning free movement of goods do not provide for rights for free circulation of products that do not originate within the EEA. Checks – albeit expedited – will be necessary to determine the origin of goods transported between the UK and the EU, with wait times on the Norway/Sweden border presently eight minutes in duration for commercial HGVs, though much passenger traffic is simply waved through.
Such a model would not represent an entirely frictionless solution for the Irish border, but would be considerably less onerous than most others, including the deal defeated in the Commons. Even these limited restrictions might be remedied by the conclusion of a joint UK-EU customs union agreement in tandem with UK EEA membership, the so-called ‘Norway Plus’ model mooted, amongst others by Nick Boles, Conservative MP for Grantham and Stamford. While Theresa May has repeatedly declared customs union membership a ‘red line’ she would not cross, the scale of her defeat may cause her to think again, while a Northern Ireland-only customs union solution might be saleable to unionists on the basis that Norway also contains a territory – Spitsbergen – with separate customs rules from the mainland.
The EEA model is not without its drawbacks. The UK would continue to contribute to the EU budget, on a level similar to the present contribution. Further, free movement for economically active EU nationals would continue on similar terms to those presently applicable (though it should be noted that Liechtenstein has been able to negotiate some derogations to these provisions). However, by restoring parliament’s sovereignty, repatriating fishing rights, and extricating the UK from the jurisdiction of the ECJ, the Norway option fulfils many of the espoused desiderataof many Brexiteers, while offering the means to preserve comparative economic stability and – perhaps – an acceptable solution to the Irish border conundrum. Not quite having one’s cake and eating it too, but certainly a plan with upsides for both remainers and Brexiteers.
Prime Minister May is due to present a ‘Plan B’ to the Commons next Monday. She could do worse than look northward for inspiration.
Ciarán Burke is Professor of International Law and Director of International Legal Studies at the Friedrich Schiller Universität, Jena in Germany.