The Question + Answer session following Lord Owen’s speech to the University of Oxford International Relations Society, Wednesday 17 May 2017.
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.
Read the speech: Brexit- An amicable divorce?
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
The EEA Agreement and why it is a potential vehicle for a UK implementation period after leaving the EU and while negotiating an EU/UK trade agreement.
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.
“I stress the EEA…. because it might be a mechanism for … gathering higher support for coming out of the EU. That must be our objective. It is certainly not our objective to ‘rise up’. What we need is unity, the maximum unity possible.”
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.”
(Article 50) is designed to damage a country that leaves… It is a disgraceful Article… that does not respect the rights of member states.
Lord Owen speaking in the House of Lords Debate on UK Withdrawal from the EU and Potential Withdrawal from the Single Market.
Thursday 27 January 2017
Download the PDF version here: H_LDebate26.17
My Lords, the rights of EU citizens already living in this country are a matter of honour and it is wholly appropriate that this House should direct its attention to that issue. It is not only a matter of honour for people in this country. We talk about Article 50, but Article 8 deals with good neighbourly relations between member states. Negotiation is an inaccurate word to describe our proceedings on Article 50; rather, it is a discussion. If this discussion is to produce what I call an amicable divorce, it is essential that we are all aware that there is more than Article 50, and that Article 8 should be one of the touchstones of the negotiation.
I agree with the plea of the noble Lord, Lord Balfe, in relation to British citizens who have served the European Union in many institutions. We urged them to go and work there—they were part of our membership of the European Union. We have an obligation to see that they are properly looked after in terms of redundancy and other aspects, and that the cost is borne by this country as it is our decision to leave. I believe that is also an essential element.
I mention Article 50 very briefly. It is a trap and was designed by two extremely clever people, one of whom I believe is in this House, sitting below me. The other was a former Prime Minister of Italy, Signor Amato. Both claim credit for this and boast that it was designed specifically never to be used. The more you look at it, the more surprised you are that any Government have ever used it. I have made it quite clear throughout that I do not believe it is appropriate to use Article 50 and that it would be much better to use the Vienna procedure for leaving a treaty, which has been established over many decades. Nevertheless, we are into Article 50.
There is an absolute necessity for the Government not to conduct their negotiation against a cliff edge. There are various ways of doing this and I have suggested some to them. However, at the end of the day, you can certainly limit the negotiating period not to two years but to a year or a little more so that your people have some months at least in which to prepare to leave the European Union. At the moment nothing protects us from the cliff edge.
You can imagine circumstances in which you are negotiating in good faith and perhaps the 27 other member states agree with you. The matter then has to go to the European Parliament, which is famous, particularly in the run-up to elections, for delivering a bloody nose to member states to prove its own virility. The matter also has to go through the procedures of every single Parliament of the 27 member states.
Let us be clear about this: the article is designed to damage a country that leaves. It is a disgraceful article and should never have been put into the treaty. It is one of the reasons many of us believe that the Treaty of Lisbon should have been subject to a referendum, and believe it was a disgrace that it was not. A lot of the damage we have suffered since entering the European Union has arisen due to the persistent view that people will not respect one another’s rights or the rights of member states. Article 50 does not respect the rights of member states
The best way … is for the Government to declare now a “Clean Brexit” – with the UK operating formally outside the all-embracing Single Market and the Customs Union.
Lord Owen’s postscript to Liam Halligan and Gerard Lyons’ paper ‘Clean Brexit’, published January 2017.
I am delighted to add a Postscript to this important and timely paper by Liam Halligan and Gerard Lyons – two economists I respect and whose writings I follow closely.
As someone who campaigned for the UK to join the European Economic Community back in 1971, in defiance of a three-line Labour Whip, I am an instinctive “pro-European”. Yet ever since Maastricht in 1991 I have become progressively more and more dismayed at the extent to which the eurozone has created a dysfunctional EU. It has also virtually destroyed the social element in the “social market”.
The Single Currency was a fatal step too far and can only work if an inner federalist eurozone core emerges sooner than the French Presidential candidate Macron is demanding. With Nigel Lawson, on a cross-party basis, I have campaigned since 1999 against the UK having anything to do with such a development. We are still to some extent in a cross-party phase post the 2016 referendum.
In reality, the 27 EU Member States’ absolutist demand for “freedom of movement” is part of the founders’ dream, necessary for a federalist Single Currency but not for a Single Market. Exiting the EU allows the UK, in the wider Europe, to trade as freely as possible in a neighbourly way, while cooperating under numerous other headings – including crime prevention, security and defence, science and technology, education and culture. That means the UK can also pursue our own free-trade agreements with the rest of the world – particularly with the fast-growing emerging markets that, increasingly, will bestride the global economy.
The best way to ensure this happens, as Halligan and Lyons argue, is for the Government to declare now a “Clean Brexit” – with the UK operating formally outside the all-embracing Single Market and the Customs Union. A deal that trades-off sovereignty with regard to our border controls in return for “market access”, could easily, as the authors state, lead to a messy and disastrous stalemate.
The impending Article 50 negotiating window, with its in-built “cliff edge”, will bring surprises, no doubt. And even if we do declare “Clean Brexit”, some kind of transitional arrangement may well be needed.
The cardinal point for the British Government is that they should carve-out a negotiating position with options. Opting and preparing for “Clean Brexit” puts the British Government in a strong position to strike sector-based deals with the EU, and ultimately a broader free-trade agreement, while preparing to trade as a sovereign nation once more.
Limiting business uncertainty is very important for the EU and the UK. Personally, I think the negotiating timetable should be: out of the EU by 1 March 2018 and fully out of any transitional arrangements no later than 1 March 2020. This means the May 2020 fixed-term General Election can take place with the referendum result honoured and normal party political engagement restored.
I am pleased to recommend this paper.
Access a PDF of this postcript here: LordOwenPostscript
Access the full research paper here: Policy-Exchange-Clean-Brexit-16th-January-2017
Writing for The Times ‘The Red Box’, 23 January 2017.
…. The game being played between the health secretary, Jeremy Hunt, and the chief executive of NHS England, Simon Stevens, over money is like the rattle of two drying peas in the same pod; they both want to bring to England the costly US healthcare system.
…. Our English politicians, whether Conservative, Labour or Liberal Democrat, have set a course heading for the costly US system, though only very few ever acknowledge this. They do not seem to realise that the STPs (changes of the Sustainability and Transformation Plan) coming soon are, in private, planning considerable hospital bed closures at a time when the Royal College of Surgeons has said that we cannot manage with less beds. They also plan on reducing services across the board.
These cuts are to finance a costly, predominantly US-designed external market healthcare system that our politicians have been introducing since 2002. They have done this with the support of newspapers who are headlining every NHS scandal. This includes, shame on them, the hand-wringing Guardian. Very few in England are daring enough to admit that the direction of travel is towards a US healthcare system and Red Box should call them out.
Why not, in the next budget speech, make all those over-65s who continue to work pay national insurance? It would raise, I am told, over £1 billion. I worked in business for 12 years past the age of 65 and could easily have paid national insurance. My generation were allowed to set mortgages and any related endowment insurance schemes against income tax. It was far easier to become a homeowner at an earlier age then. The elderly still working in England are now, I suspect, ready to pay more to return the NHS in England to the sustainable planned model that they have relied on for most of their life.
Download the full article here: HaltMarchtoUS4