Opinion piece in the Daily Telegraph, 22 June 2017.

“Jim Callaghan guided his restless party through choppy political waters and this PM can do so too.”

“Minority government is a grind, with the Whips’ Office becoming more important that the great offices of state. From February 1974 to May 1979, I saw the inner workings of the last minority administration to survive more than a few months. Few of us Labour MPs thought it would last as long as it did. The lesson is that voters expect Parliament to live with the result they voted for.

…“In Callaghan’s case., once he had taken over from Wilson, the office of minority PM made the man. He liked negotiations. He was good at them. He held his core group of ministers together with consummate skill showing great respect to different factions. While Theresa May has not shown such diplomacy in the past, no-one should underestimate her resilience.”

“…her task is difficult. But if she can build a new spirit of cooperation it is possible that this parliament will deliver exit from the EU as the first stage. It may be the next parliament delivers the second stage – namely as a party to the European Economic Area while we negotiate the detailed implementation of an EU-UK trade agreement.”…

Letter to The Times, June 20 2017.

‘Soft’ Brexit plan

Sir, Further to your report “Germany offers soft Brexit amid worries about coup at No 10” (June 19), the German suggestion is well meant but is not as favourable to the UK as being a non-EU contracting partner to the European Economic Area Agreement (EEAA) as we negotiate an EU-UK trade agreement. The proposed court would be joint EU-UK, ie. it would retain a direct EU influence. In contrast, the EEA agreement’s “Efta” court is a fully independent court whose judges come only from non-EU members.

The contracting parties to the EEAA formally agreed in 2007 that the “Efta” court can differ significantly from the European Court of Justice in its interpretation of the implications of the free movement of persons directive. This highly advantageous (to the UK) agreement could easily be lost in a bespoke negotiation. Bundling the single market and customs union, as in the EU treaties, contrast unfavourably with the EEAA which rightly keeps them rigidly unbundled. Norway and Iceland do not have customs union arrangements with the EU. Lichtenstein is part of a customs union, but that is with Switzerland. The EEAA also allows the UK to run its own agriculture and fishing policy.

The primary aim of the EEAA is commercial and for open trading, whereas the primary aim of the EU customs union is protectionist.

LORD OWEN

House of Lords

Lord Owen is interviewed by David Mellor as part of his LBC series ‘The Election Experience’.

Hear the interview here

The Question + Answer session following Lord Owen’s speech to the University of Oxford International Relations Society, Wednesday 17 May 2017.

View the Q+A session (approx 26 mins), courtesy Voices from Oxford.

Issues touched on include:

• The importance of accepting the result of the Brexit referendum
• Issues within the Labour party
• Post-Brexit challenges around offshore territories and fisheries, the risks of a ‘cliff edge’ in negotatitons and the need to be prepared to use international treaty laws
• How issues around the ERM showed the necessity of having a bottom line “when things are fundamentally wrong”
• Issues of citizenship post-Brexit.

View or read Lord Owen’s speech preceding this Q+A.

Lord David Owen’s speech to the University of Oxford International Relations Society, Wednesday 17 May 2017.

View Lord Owen’s speech (approx 45 mins), courtesy of Voices from Oxford.

Read the speech: Brexit- An amicable divorce?

Extract: 

My main message is Brexit does not belong to the Conservative Party. It belongs to us all whether in different parties or people who voted Leave or Remain in the referendum.

I hope today to dispel some myths and establish some facts about the European Economic Area Agreement, EEAA and why it is a potential vehicle for the ‘implementation period’ that should follow exiting the EU and which we will leave once we have an EU/UK trade agreement or conclude the EU is too dysfunctional to offer an agreement of mutual advantage.

What this existing EEAA transitional mechanism provides is a framework which we leave when we want to after having left the EU after two years with a further three years maximum for agreeing a trade agreement. There is no cliff edge. No point where we negotiate in good faith and find the design of Article 50 precipitates a crisis choice ‘accept or chaos’ under this existing legal structure. David Cameron told the country before the referendum that we would invoke Article 50 while ignoring the fact that it is designed in a way that is a deterrent to leaving because of its in-built cliff edge. The design is deliberate so that in some circumstances we could be left with a ‘take it’ or ‘leave it’ offer with little time to adapt.

It was not foolish for the government to say that faced by a bad offer from the EU, which we are not allowed to change, we would leave. It would have been irresponsible to declare any other position. But it would also be irresponsible not to assert our right to remain a Contracting Party to the EEAA after we have left the EU, and if necessary to exercise our right to use the Vienna Convention on the Law of Treaties, VCLT, dispute procedure to establish in law that right.

The EEA Agreement is binding upon the Contracting Parties, one of which is the UK. It is a multilateral international treaty. It is not a bilateral agreement between the EU and EFTA as is sometimes supposed. Decision-making autonomy in respect of treaties is, of course, constrained for EU Member States, but by the EC/EU Treaties, not by the EEAA.

NEU states, as the UK will be after leaving in March 2019, retain their unconstrained treaty-making powers outside the ECJ: a major difference between the entailments of the EC/EU Treaties and of the EEAA.

Read Lord Owen’s full speech here: Brexit- An amicable divorce?

View the Q+A session following the speech

Download a PDF of this article here: DOonEEAAarticle

Lord Owen’s proposals on the EEAA are also referred to in article by Liam Halligan in the Sunday Telegraph of 7 May.

It is very important that Brexit does not become the property of the Conservative Party or Conservative MPs during this General Election. It is the policy chosen by the majority of the British people in the referendum in June 2016. The country’s best interests will be served if as many Labour MPs as possible who are elected to the House of Commons on 8 June have unequivocally told their voters that they fully endorse the EU referendum result and are ready to support its implementation.

That means first: leaving the EU no later than March 2019, preferably much earlier; the reinstatement of our own UK and devolved parliaments’ laws, border controls, immigration policies and democratic governance; attempting to negotiate an EU/UK trading agreement and other trading agreements worldwide.

Staying in the Single Market on the terms and conditions as they currently apply to EU Member States, with no mechanism to control entry of EU citizens, would run counter to any fair-minded interpretation of last year’s vote to leave. It is, therefore, not a Brexit option despite being referred to by its proponents as a ‘soft’ Brexit.

The Prime Minister when spelling out the Government’s Article 50 stance sensibly said she would not seek to change the founding fathers’ commitment to ‘free movement of peoples’. This was neither ‘hard’ nor ‘soft’ but realistic: a recognition that the EU was adamantly against changing the terms on which its own Member States participated in the Single Market. The response we can now see from the Commission is a highly provocative demand for a €100 billion divorce bill. The British response should be to spell out in manifesto and legal terms what the Prime Minister meant when calling for an ‘implementation period’ after leaving the EU. This will allow during the next few months the UK government to see if the EU in their Article 50 negotiations are serious about whether we can reasonably expect an EU/UK trade agreement based on a ‘heads of agreement’ on implementation.

It is well understood that, although the Single Market was first developed by the EU, it was subsequently extended to include non-EU States. The name for this wider Single Market is the European Economic Area (EEA) and it is governed by a distinct Treaty, the EEA Agreement (EEAA). It is, however, insufficiently recognised that the Agreement provides for a two-pillar governance or supervisory structure, one for EU Member States and another for non-EU states. Neither the European Commission nor the ECJ holds sway in the non-EU pillar. [See accompanying detailed assessment and interpretation of the EEAA].

The EEAA is differentiated from the EU Treaty in a number of other, major ways, including, for example, to become effective in non-EU States, Single Market regulations must be approved by national parliaments of NEU States; there is no common agricultural or fisheries policy; there is no mandatory membership of a customs union (non-EU States can negotiate their own trade deals); and the EEA-wide freedom of movement principles have different interpretations and implementation processes.

While for States in the EU pillar, controls on cross-border movements of workers are constrained by the existence of a common EU citizenship, in the non-EU pillar there is no such constraint: the relevant Treaty entailments derive exclusively from economic and social policy considerations, not from quasi-constitutional Treaty rights. As a consequence one NEU state in the EEAA does operate mechanisms to restrict movement of workers.

The UK is currently a Contracting Party to the EEAA and, wisely, the Prime Minister did not combine the Article 50 notification with an Article 127 (EEAA) withdrawal notification, thereby keeping options open. A mechanism exists, therefore, to avoid a cliff-edge in March 2019 if, after exiting the EU, we remain a Contracting Party to the EEAA and seek to rely on the non-EU governance pillar while in the implementation period. There are some immediate implications of adopting such an approach.

First, there would be a need for some textual adjustments to the EEA Agreement to reflect the UK’s change in status. For the maintenance of market confidence, which could become a crucial factor during the ‘to and fro’ of the negotiations, the sooner those discussions are initiated the better. Given the mutual benefits that would be in prospect, it is difficult to see grounds for EU resistance to such adjustments, but if the European Commission were to refuse to cooperate then there would be time for recourse to international dispute resolution on the basis of Vienna Convention principles and provisions – on which the UK would very likely succeed.

Second, as EEAA Contracting Parties, Iceland, Liechtenstein and Norway are necessary participants in the discussions, particularly in relation to the governance/supervisory arrangements. We should start talking to them soon. Their goodwill will be essential and we need to talk to them anyway about future trade arrangements, separate from the EU trade negotiations. Notwithstanding their small populations, proximity, historic ties and common interests in natural resource management two of these three NEU states, Iceland and Norway, are significant economic partners for the UK. And Liechtenstein already operates immigration controls.

This phased/sequential procedure is neither a ‘hard’ nor a ‘soft’ exit. It is a mechanism that provides the opportunity for a mutually beneficial bargain to be implemented against a flexible timetable, but with expedient transitional arrangements that would themselves immediately satisfy the main wish of the referendum majority (to take back control). If there was an undue delay in reaching an EU/UK trade agreement the UK only has to give a year’s notice to leave the EEAA. We would then exit on WTO terms, but at a time of our own choosing.

Download a PDF of this article here: DOonEEAAarticle

Download a PDF of Lord Owen’s detailed EEAA assessment and interpretation here: DOonEEAAinterpretation

Lord Owen’s proposals on the EEAA are also referred to in article by Liam Halligan in the Sunday Telegraph of 7 May.

Speaking in the House of Lords debate on the European Union (Notification of Withdrawal) Bill, 21 February 2017

Read Lord Owen’s full speech here: HLdebateonEUBill21.2.17

“We have to be flexible on many things. We need to come out of the EU as quickly as we can, and I would not wait two years to do this. That is the fundamental decision as I understand it, and which I believe is virtually irrevocable as the result of the referendum.

“How we handle the next few years is a very difficult question.

“…. there has to be a transitional period, but that transition should be after we have gone from the EU and before we have a trading agreement. In that area, there are flexibilities that we should be examining. Of course, we must first talk, as we are bound to do under Article 50, to the 27 EU member states…

“We should also talk to our other European friends – the non-EU members of the EEA.

“I stress the EEA…. because it might be a mechanism for healing some of the wounds and for gathering a higher percentage of people in support of a policy of coming out of the EU. That must be our objective.

“It is certainly not our objective to ‘rise up’. I hope nobody else goes to Bloomberg to make speeches…. What we need is unity, the maximum unity possible.”