The European Single Market comprises the 28 states of the European Union plus Iceland, Lichtenstein and Norway and Switzerland via bilateral agreements. The United Kingdom could leave the European Union and Customs Union but rejoin EFTA/EEA and thus stay in the European Single Market.
The benefit of doing this is that the United Kingdom would retain access to Single Market databases (such as Single European Sky) and thus the calamity that would befall the United Kingdom in the event of a 'Hard Brexit' (no deal scenario) would be lessened considerably.
To take just one example when coming back into the UK from abroad by air, the traveller is invited to go through gates for nationals of the European Union 'and the EEA'.
There are two queues at passport control – one for European Union (EU)*, European Economic Area (EEA), British and Swiss nationals, and a second for all other nationalities. (http://www.heathrow.com/arrivals/immigration-and-passports)EFTA is governed by the EFTA convention (http://www.efta.int/sites/default/files/documents/legal-texts/efta-convention/Vaduz%20Convention%20Agreement.pdf)
and the EEA by the EEA agreement (http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf)
The main objection to the single market and therefore to being in EFTA/EEA is the Four Freedoms. These are: Freedom of Movement of People, Capital, Goods and Services. Mrs May in her various statements that "Brexit means Brexit" (whatever THAT means) and in her Lancaster House speech said this:
But I want to be clear. What I am proposing cannot mean membership of the single market.Dr Richard North of EUReferendum.com (to whom this post owes a huge debt) has found a clever way around complete movement of people in Chapter 4 (Safeguard measures) of the EEA agreement. Articles 112 and 113 of the EEA agreement:
- If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113.
- Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.
- The safeguard measures shall apply with regard to all Contracting Parties.
- A Contracting Party which is considering taking safeguard measures under Article 112 shall, without delay, notify the other Contracting Parties through the EEA Joint Committee and shall provide all relevant information.
- The Contracting Parties shall immediately enter into consultations in the EEA Joint Committee with a view to finding a commonly acceptable solution.
- The Contracting Party concerned may not take safeguard measures until one month has elapsed after the date of notification under paragraph 1, unless the consultation procedure under paragraph 2 has been concluded before the expiration of the stated time limit. When exceptional circumstances requiring immediate action exclude prior examination, the Contracting Party concerned may apply forthwith the protective measures strictly necessary to remedy the situation.
For the Community, the safeguard measures shall be taken by the EC Commission.
- The Contracting Party concerned shall, without delay, notify the measures taken to the EEA Joint Committee and shall provide all relevant information.
- The safeguard measures taken shall be the subject of consultations in the EEA Joint Committee every three months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application.
Each Contracting Party may at any time request the EEA Joint Committee to review such measures.
"If serious economic, societal or environmental difficulties...." The United Kingdom could argue that virtually uncontrolled immigration satisfies the condition in Article 112 (1)
Even better though, it is now clear that the Cabinet or certainly some Cabinet Ministers are willing to accept Freedom of Movement of people in the short term. I have read two years in some press reports. Therefore Mrs May's objection to being a member of EFTA/EEA no longer applies.
When we join EFTA/EEA we immediately invoke article 112 of the EEA agreement whilst negotiating with our EFTA colleagues a better deal. EFTA/EEA would be the fifth largest trading bloc if the UK were to join it.
Mrs May was incorrect in stating the "European Court of Justice that would see it still having direct legal authority in our country".
If we were a member of EFTA/EEA, there is an EFTA Court:
The EFTA Court fulfils the judicial function within the EFTA system, interpreting the Agreement on the European Economic Area with regard to the EFTA States party to the Agreement. At present those EFTA States are Iceland, Liechtenstein and Norway ...The United Kingdom in EFTA would have to deal with the EFTA court and NOT the European Court of Justice (ECJ). The EFTA court does not have to apply the rulings of the European Court of Justice
The EFTA Court has jurisdiction with regard to EFTA States which are parties to the EEA Agreement (at present Iceland, Liechtenstein and Norway). The Court is mainly competent to deal with infringement actions brought by the EFTA Surveillance Authority against an EFTA State with regard to the implementation, application or interpretation of EEA law rules, for giving advisory opinions to courts in EFTA States on the interpretation of EEA rules and for appeals concerning decisions taken by the EFTA Surveillance Authority. Thus the jurisdiction of the EFTA Court largely corresponds to the jurisdiction of the Court of Justice of the European Union over EU States. (http://www.eftacourt.int/the-court/jurisdiction-organisation/introduction)The important parts in the above introduction to the EFTA court are:
'.... for giving advisory opinions to courts in EFTA states' and 'The EFTA court largely corresponds'. It would seem then that the ECJ does not have direct legal authority but that the EFTA court has advisory authority.
There is then an Inter-Governmental organisation that the United Kingdom could join as an Independent Sovereign Nation free of the shackles of the Commission and the ECJ.
In this Inter-Governmental organisation we could represent ourselves (as opposed to being 28th represented by the EU) and negotiate our position on an equal footing with other Sovereign nation states (Norway, Iceland, Liechtenstein and Switzerland). We could even help the other nations negotiate a better Inter-Governmental Free Market which non EU member states in Europe might want to join.
The Article 50 clock ticks ever louder.
We must instruct our Government that EFTA/EEA is what we want.
It is least risky economically and avoids the cliff edge of the 'Hard Brexit' that this Government seems determined to deliver. EFTA/EEA is the best initial stepping stone on the road to undoing 44 years of subservience to a supra-national body.
Let's go for it.