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Adrian Yalland @AdrianYalland
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Right, here we go. Please fasten seat-belts and make sure your trays are stowed in an upright position, and prepare for rebuttal of the @peoplesvote_uk "dodgy dossier" (this may be a long one....... there is a lot to rebut). You may wish to take tea and come back in an hour.
Essentially the #PVdodgyDossier repeats a few easy-to-discredit old anti-EEA myths, with a smattering of deeper research meant to be authoritative yet isn't. Shame as the author @jonlis1 is a solid researcher let-down by not knowing the law & having his work "edited" by PV.
I have covered two of the myths ("rule taker" and "continuing contributions") in this article.… This is probably as good a place to start as any to understand why the #PVdodgyDossier is so unreliable.
Objective of the Document: It is likely the final choice for MPs keen to avoid leaving the EU with no deal is (a) a second referendum or (b) adopting a Norway-type relationship based on continued participation in the European Economic Area (“the EEA”) after Brexit.
I do not accept a second referendum will gain majority support in Parliament. the Labour Party are opposed (although a large number of Labour MPs are in favour, but this means voting against the whip). The Tories are 250-50 against.
But "Norway+" is a deal Brexit & Remain MPs (except the ubers) can adopt. It gets us out the EU (which is a binary thing - we are either in, or out, no half-way house) but preserves single market access and the citizenship directive rights from outside EU citizenship
The policy was formulated by Labour MP Stephen Kinnock and attracted support in Conservative circles. It is now advocated by Oliver Letwin MP and Nick Boles MP.
There is discussion over whether we need a CU and if it should be permanent or temporary to resolve NI. Generally, Labour MPs prefer a permanent Customs Union whereas Conservatives want a temporary one. The protocol option is not widely understood.
But both versions are now widely seen either an alternative to the Government’s proposed withdrawal deal itself or as a viable “Plan B”. It has support from over half the Cabinet who wish to avoid no deal and a proposed second referendum.
Remaining as a signatory state (or “contracting party”) to the EEA Agreement secures wide support from business because it means the UK would continue to be full participants in the EU’s single market after Brexit.
Many voters are also supportive, particularly Remain-voters because if the UK remains a contracting party to the EEA Agreement, UK citizens would continue to benefit from the rights arising under the EU’s Citizenship Directive without actually having to be citizens of the EU.
Oddly, the #PVdodgyDossier didn't mention that. Can't think why! Remainer-leaning types would have been really encouraged to hear that bit of news. But not many people read Annex V to The EEA Agreement [1994] including it seems People's Vote.
The “plus” (the addition of a Customs Unions with the EU) is deemed necessary to ensure the backstop in Northern Ireland is avoided (which it would). It has (depending on your perspective) the secondary benefit of keeping the UK inside all existing EU trade deals.
But this would however prevent the UK (a) securing its own independent free trade agreements and (b) benefiting from the trade deals negotiated by the European Free Trade Association, which the UK would almost certainly need to re-join to make the EEA a viable post-brexit model.
We can rejoin EFTA by making either an application for full EFTA membership under article 56(1) of the Veduz Convention (but negotiating derogations from the article 56(3) obligations - i.e. the need to participate in EFTA trade deals)
or by making an application for Associate status with the EFTA institutions under article 56(2) of the convention, thus avoiding the obligations at article 56(3).
The “plus” is by a separate bi-lateral agreement with the EU to adopt its Common Commercial Policy. An alternative from @EFTA4UK is to agree a protocol that allows the UK to absorb the EU’s custom code thus avoiding the need for a customs union.
Which is the better option is likely to depend on you view of whether remaining in a Customs Union with the EU or more or less advantageous than having the ability to create new independent trade policies with other third countries unilaterally and/or via EFTA.
Norway plus is currently seen as a compromise option which a majority of MPs could support to avoid the alternative options of automatically leaving the EU with no deal in place, or a further referendum (which would be seen as divisive and undemocratic by many MPs).
The #PVdodgyDossier is published by a group an organisation committed to securing a further referendum on the UK’s membership of the EU irrespective of concerns it would be seen as divisive and undemocratic.
As such, any proposals for a Brexit which are seen as a viable, workable and proportionate compromise are likely to threaten the chances of a further referendum, especially as “brexit fatigue” starts to set-in and the population grow weary of the uncertainty.
A brexit which keeps the UK in a CU with the UK and the single market is likely to have significant support from remain voters, the very voters People’s Vote need to keep agitated, and as such a Norway-style Brexit is a clear threat to the objectives of @peoplesvote_uk
The document repeats a number of myths about how future UK membership of EFTA which were first circulated by pro-Remain groups in 2016. The #PVdodgyDossier also contains significant errors of fact and law which this thread addresses.
The foreword states that inside the EEA and the Customs Union the UK would be “without any formal decision-making powers or vote. We would be subject to laws over which we had no democratic oversight. It would represent a severe loss of control”
This is certainly true the proposed withdrawal agreement, but it is a wholly misleading and inaccurate characterisation of the EEA.
1.The EU does not draw-up legislation in a vacuum and impose it. EFTA States have a statutory right to be consulted on proposed single market legislation. This is not a paper exercise but a meaningful consultation (i.e the obligation to consult is a statutory obligation)
There is formal input into the proposed rules, which means the legislative process is best described as legislation by “mutual consent”. It is in no way reliant on “goodwill” as the document erroneously states.
2. Once the proposals are through EU’s internal legislative process, the UK would have a seat on the EEA Joint Committee which is “responsible for the management of the EEA Agreement” where “decisions are taken by consensus to incorporate EU legislation into the EEA Agreement”
This means the UK could (although may not choose to for political or diplomatic reasons) effectively block the proposed law being incorporated into the EEA at the Joint Committee stage.
This fact is simply not mentioned in the document and the sole reference to the Joint Committee is to imply the opposite by focussing on the obligation for the EEA states to “mirror” EU law (which achieved through the Joint Committee).
This is however only half the story, because the obligation to achieve homogeneity does not in any way disempower a non-EU contracting party to use the Joint Committee to reject or send back for further amendment the EU’s proposed law.
The attempt is to portray the Joint Committee as a body which rubber stamps EU law into the EEA. It emphatically is not, it is a body which “decides” whether to approve or reject EU law, and a body on which the UK, as the second biggest economy in Europe, would have huge clout.
3. In any event, because the “direct effect” of EU law ends with Brexit, even after approval of the Joint Committee is given, each EFTA state has to approve new single market legislation at a national parliament level (where “democratic oversight” would rightly be exercised).
This of course means national parliaments enjoy the right to refuse to place new EU legislation into its domestic law even when for diplomatic reasons they decide not to block the same legislation via the Joint Committee.
This power to “disapply” is a power the UK currently lacks because in membership of the EU, EU law comes into “direct effect” automatically. Outside the EU but still inside the EEA, the UK would have this power.
Furthermore, and disingenuously in my view, the document completely ignores the issue of Qualified Majority Voting (“QMV”). The increased use of QMV means the UK is regularly outvoted without the use of the very veto it would enjoy outside EU membership but in the EEA.
This makes the comparison the document seeks to draw meaningless. You cannot compare the respective abilities to impact EU law inside and outside without covering QMV. It's disingenuous not to.
Remaining in the EU (subject to both QMV and direct effect) compared to the EEA/Norway option (outside the EU, not subject to direct effect and able to use a veto) is the heart of the matter. The #PVdodgyDossier ignores QMV completely.
In fact, "Norway" increases the UK’s ability to exercise control over EU law. The UK would be able to block EU legislation in the joint committee, or if deemed more diplomatic, permit it in Joint Committee but veto application of the law domestically.
This document therefore disingenuously portrays the legal powers over EU law which the UK would enjoy outside the EU as a weakness, whilst describing the weakness of the UK’s position to stop EU law in membership as a strength. This is a perverse position to adopt.
4. Finally, the EEA established two jurisdictions governing the same body of law. The EU’s Court of Justice adjudicates that body of law for EU members and the EFTA court adjudicates for the EFTA contracting parties.
Outside the EU, the EU would have no power to impose its law on the UK and the decisions of the Court of Justice are not binding. The UK would come under the authority of the EFTA Court which on which UK judges would sit (and probably be in the majority).
The EFTA Court is entirely at liberty to diverge from the decisions of the EUCJ and has been at liberty to do so since May 1994. The #PVdodgyDossier doesn't mention this and portrays the EFTA court as as problematic for Brexiters as the ECJ. Which is simply wrong in law and fact.
This “twin jurisdiction” within an obligation to ensure legal homogeneity across the two jurisdictions is not dissimilar to the relationship the Scottish and English courts have on laws passed by the UK Parliament covering the whole of the UK. ECHR for example.
The Scottish courts have absolute liberty to consider the rulings of the English courts and to follow them, or to reject them. In the same way, the EFTA court is entirely at liberty to follow its own reasoning and to reject the ratio of the Court of Justice.
Aside from the factually and legally wrong statement that the UK would “lose control over our laws”, it is inconceivable that, when it comes to drafting new legislation, Europe’s second biggest economy would simply be “ignored” by the EU:
The EU would be in an association agreement legally obliging it to meaningfully consult other contracting parties, where the UK can exercise statutory powers in the Joint Committee to block the legislation, where the EFTA Court can overrule it and the UK Parliament can veto.
The foreword also makes another factually incorrect assertion in stating that “After all, non-member Norway currently pays more per head for no voice at the table than we do as full members of the EU.” This is simply, factually wrong - Norway pays considerably less.
Firstly Norway does not make the net contributions that the UK does, it only covers the cost of participation in joint EFTA/EU schemes (many of which the UK is paying to remain in via the “divorce bill” of £39bn anyway) as the Norwegian Ambassador to the EU pointed out in 2014.
Here is a link to that speech which I encourage you all to click, and watch with a nice cup of tea!
After that it voluntarily funds the Norway Grants Scheme to reduce economic inequality in southern Europe. This is Norwegian money funding Norwegian run schemes, and is not part of the EU’s structural budget.
The way the amount payable is calculated on the basis of the state’s per capita GDP. Norway’s is about $76,000 whereas the UK's is $39,000 meaning the UK’s payment will fall considerably after Brexit. @george_yarrow is the go-to man here!
The Free Movement Myth: Article 112 EEA Agreement gives a signatory state a qualified but unilateral right to trigger safeguarding measures which amount to a temporary halt on freedom of movement.
This is the “temporary” suspension Liechtenstein triggered which has resulted in a de-facto right to permanently suspend free movement and use quotas. This is a legal precedent which cannot be airbrushed from history, although it is susceptible to misrepresentation by both sides.
Once triggered the agreement obliges the triggering party to call a conference to resolve the issues which caused the triggering. This may lead to a new arrangement or nothing at all. But Liechtenstein has derogations over workers and Iceland has derogations over capital.
Alternatively, it may come to nothing: the EU and the EFTA states may simply refuse to accept the suspension is justified which means the triggering party might have to un-suspend or face retaliation (albeit retaliation which must be proportionate).
But, should the UK decide to trigger article 112, what the EU cannot do is force the UK to re-open its borders. It can merely retaliate if we don’t. The treaty does not in any way seek to limit the Article 112 powers or a contracting party’s right to trigger it.
A112 merely qualifies the broad circumstances where the powers can be triggered: the signatory state is the sole judge of whether the criteria for triggering the safeguarding measure is met, and it can do so unilaterally.
The Customs Union: The document states “Members of the EU’s customs union apply a common external tariff. No EFTA states are also members of the customs union.” Yet the document ignores Switzerland, which has a de-facto customs union via a series of bi-lateral arrangements. Ooops
Furthermore, the document erroneously states the customs union would not “eliminate the need for the backstop”. This is wholly wrong – it would completely remove the need for the backstop. That the whole purpose of the "+".
With the "+" you have complete regulatory alignment on non-tariff barriers (the EEA) and tariff/custom barriers (the CU). Because there is a common travel area, there is zero need for any border and zero need for a backstop. The #PVdodgyDossier is completely wrong on this.
Does the rest of the document bear scrutiny? No. In my view of the authors, #PVdodgyDossier makes some catastrophic errors of fact and law. I try to summarise them in the rest of this thread but I fear I have missed many.
Quote: “Norway Plus is politically unrealistic – the ship has sailed. The Government and official Opposition have repeatedly rejected EEA membership because of, among other things, the rules on free movement and state aid, and the inevitable loss of UK influence.”
Reply: Norway Plus is the only alternative plan which could win a Parliamentary majority. The EU have also said that Norway Plus is an option for the Political Declaration meaning it could be a model for the future relationship (as the Government initially proposed)
Quote: “It would take years to negotiate and would prolong the Brexit uncertainty. Even if the UK, EU and EFTA agreed to aim for Norway Plus, there is no guarantee the negotiations would be successful, given the changing political context in the EU and UK.”
Wrong: It does not involve reopening the complex withdrawal agreement. Leading EU politicians have backed the plan. Michel Barnier himself has said that ‘the only frictionless option for the future with the UK would be Norway Plus’.
“It would leave the UK with no formal voice, vote or veto. The UK would have no formal oversight of new laws handed down by the ECJ, via the EFTA Court." This is a REALLY basic error and shows no lawyer has been anywhere near the #PVdodgyDossier.
1. The UK would have formal voice, power to bock on the joint committee and a veto domestically. 2. The ECJ does not "hand down" laws via the EFTA court. It's a wholly separate jurisdiction. It's like saying the English courts hand down law via the Scottish courts. They do not!
Quote "Because of the size of the British economy and fears of ‘cherry-picking’, the EU would likely compel us to follow EEA rules more strictly than Norway or other members of EFTA.”
Again, just wrong in law. the UK would become a signatory to the same EFTA Convention and EEA Agreement as the other contracting parties and as such the principle of equality would mean UK and UK citizens treated the same way as other EFTA States.
To not treat all contracting parties equally would amount to discrimination on grounds of nationality and would be illegal in international law. The document places too much weight on those in political or diplomatic circles who are not aware of the law.
quote: "“It would give us less control, not more, over free movement rules. EEA membership would mean complying in full with EU rules around free movement."
This analysis is legally wrong. Norway Plus means that freedom of movement will continue unless a significant change in circumstances justifies the use of the safeguarding measures.
This is however a political decision and not a legal one. While it is unlikely that any emergency brake will be used, the law does give the UK significantly greater control over immigration policy should it choose to use it:
Any decision to implement safeguarding measures is a decision the UK could take unilaterally and upon the basis of its own assessment of the need to do so.
Once triggered the UK could not be forced to reopen its borders to free movement, but the EU would be entitled to take proportionate countermeasures in reply. This amounts to a political decision to fetter a qualified legal right to limit free movement.
Quote: “It would give us less control over our money. The UK would send money to the EU but have no influence over how that money is spent." The UK would send NO money to the EU beyond paying the costs of our participation in joint projects. This is just lazy or a lie.
quote: "This would amount to taxation without representation – and, based on Norway’s current contributions per capita, we could end up paying roughly as much as we do now.” WRONG! See above. The idea the UK will heavily subsidise farming and fishing is a straw-man.
Quote: “The UK would lose our influence over our trade policy, whilst also not gaining an independent trade policy...We would have no guarantee of reciprocal access when the EU strikes new trade deals, and no leverage over that third country to secure the same terms.”
This sentence shows the author does not understand how the Customs Union would work and is also legally incorrect. It approaches the subject from a “Norway only” perspective.
The proposal means that the UK will have the benefit of all current EU FTAs in existence for as long as the UK remains in the Customs Union. Thereafter it would have freedom to enter into new FTAs wither bi-laterally or via EFTA (per s56(3) of the Veduz Convention).
For as long as we remain in the Customs Union, Norway Plus means preserve frictionless trade and avoid a hard border in Northern Ireland. Whether you want it is another matter but these are the facts.
Quote: “Objections to EEA membership do not only concern freedom of movement and state aid. Inside EFTA there would also be a compulsory judicial requirement in the EFTA Court, which simply replaces (for Brexiters) the ‘problem’ of the European Court of Justice. "
Wrong: the EFTA Court is not “compulsory”, there is no obligation for national courts to make preliminary references and the rulings of the EFTA Court are advisory not binding (unlike, of course, the Court of Justice, whose decisions are binding on all EU members).
To seek some kind of equivalence between the Court of Justice with its supremacy over domestic law and binding decisions and the voluntary EFTA Court with its non-binding decisions is either just a very basic mistake or an attempt to mislead the reader.
Quote: "And although Norway Plus could potentially exclude membership of EU agencies, foreign policy, and agriculture and fisheries instruments, in economic and trade terms Norway Plus is emphatically ‘BRINO’”
EFTA States are included as observers and have cooperation provisions in many EU agencies and regulatory networks including EASA, EMA, EBA. BEREC, ECN and ERN. BRINO is a myth. EU membership is like marriage. You're either married or you're not. There is not, in law MINO.
Quote: “This accordingly raises the question of whether EFTA would agree. The UK would have to apply like any state, and that would require a process of detailed negotiation.”
This is one of the biggest mistakes the #PVdodgyDossier makes. The wool is well and truly being pulled over MPs eyes. This statement is wrong in law because it ignores the duty of sincere co-operation which ALL current contracting parties have towards other contracting parties.
In a situation where leaving the EU means the destruction of individuals' fundamental rights, all EU States and EFTA States are likely to be obliged to cooperate in good faith to preserve the continuity and effectiveness of those rights to the maximum extent possible.
Especially if the alternative is hard Brexit & major disruption for all 650m EU citizens. Any application to re-join EFTA would therefore be subject to the overriding obligation to operate in good faith, not “game” the application for national self-interest, including the UK.
The recent Article 50 case heard in the Court of Justice, (Wightman) is likely to affirm that one State cannot veto another State's accession for political national interests.
This means the "Norway doesn't want us" myth is busted. ALL EFTA states would be under an obligation to not reject the application for political reasons because they have to put continuity of the single market first. It's in the treaty!
This is why the PM of Norway, who presumably understand's Norway's obligation of sincere co-operation recently said this:…
Finally, Suggestions the UK would seek to enter EFTA and “seek to hamper the effective transfers of legislation” are without any foundation – the UK has never done this in EU membership and there is no reason to assume it would do so in EFTA. The entire argument is a red herring
Summary: The document is deeply flawed. Whilst commenting extensively on the law, it does not appear to be an authoritative analysis of the legal issues in hand.
It is hard to imagine a qualified expert in the legal issues has had an input into this document. It fails the test of being an unbiased analysis of the law or the facts, but is clearly designed to extenuate negatives, gloss positives and ignore flaws in its own arguments.
It is neither credible nor reliable. The author repeatedly refers to apparent concerns about the impacts of Norway plus held in other European countries which appear to arise from discussions with EU/EFTA state diplomats or politicians.
But these concerns do not seem to bear scrutiny when analysed against what the law actually is. The pamphlet repeats long-standing myths about the EEA and how the UK would operate within it after Brexit, and makes strong, but wholly incorrect statements.
It misunderstands the UK is already a member of the EEA Agreement and doesn’t need to apply for “membership” and misstates the UK might need its own pillar. It repeatedly and unjustifiably posits that the UK is preparing to act in ways which amount to bad faith.
It confuses aspects of the “Norway” proposal, with aspects of “Norway plus” proposal, misunderstands how the Customs Union proposal would work, states the issue of the backstop would not be resolved when Norway Plus removes the need for the backstop at all.
It ignores key negatives of EU membership (such as the impact of QMV) and fails completely to mention key positives of the EEA Agreement (such as the continuation of the rights accrued under the EU Citizenship Directive – likely to be of key interest to Remain supporters).
It exaggerates the negatives and underplays the positives. It is generally speaking a biased publication which amounts to a highly unreliable summation of the issue it purports to explain. The #PVdodgyDossier at best misinforms and worst, misleads.
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