Starmer’s Swiss red line

As sure as night follows day, Farage & coterie were up in arms when the government tested reaction to the idea of a “Swiss-style” approach to future relations with the EU.

And just as surely, in an immediate return to the Brexit politics of 2017–2019, any previous ‘Remainer’ (e.g. me) who recognizes that the government even testing the waters like this might offer a glimmer of hope is accused of ignoring the realities of Brexit, or even welcoming them.

But even at risk of further accusations of betrayal, I’ll set out briefly herewhat I think what the route towards a more sensible relationship with the EU might be, probably not for a Tory government caught by its ERG entrails, but for an incoming Labour govt.

In so doing, I’ll suggest tentatively that the more simplistic commetator interpretations of Keir Starmer’s new statement — that a Swiss Deal comes with a ‘red line’ he will not cross — miss the cynical but subtle manoeuvre in which Labour is now engaged, where it says it will “make Brexit work” without being at all clear about how.

Whether this route lead in the longer terms towards a full new treaty that either is or resembles closely EU or EEA membership is difficult to see from here, but what is visible route to some return towards the four freedoms beginning, I suspect, with freedom of movement.

And no, none of it will be via the complexities of a “Swiss-style” deal, with thousands of bits of new bilateral agreement — I presume the Swiss Dealphrase was used by the government ‘insider’ as a loose signalling of improved relations, rather than suggestive of any concrete steps

Instead of looking at new arrangements with the EU, whether modelled on Switzerland or Norway, the best way forward to better relations is via the existing arrangements, set out over 1,000+ pages in the Trade & Cooperation Agreement agreed in Dec 2109

It’s easy to forget, given that we got Hard Brexit from Johnson, is that it isn’t a No Deal Brexit. That’s why the agreement it’s 1,000 pages long. What we got, instead (and largely thanks to EU patience, was a detailed agreement on a sort of bilateral unilateralism.

That is, the negotiators set out in great detail, and within WTO parameters, what decisions each party can take unilaterally without upsetting the other party, as long as each party keeps the other party informed.

This is most apparent at Title II, the agreement on post-Brexit services and investment, which sets out within it the rights of the UK and the EU to restrict the entry into their respective territories of “natural persons”

It allows the UK and EU to apply these restrictions whether or not those people are part of “establishing a favourable climate for trade an investment” between them.

Now, of course, this may seem counter-intuitive: how does a bilateral agreement permitting each party to *deny* freedom of movement of persons, even where it’s advantageous to trade, create a route to the restoration? But there’s sense in it…….read on.

The very fact that the right, if it is a party’s choice to deny freedom of movement is written into the agreement makes explicit also the right not to implement that right, if creating a climate for trade and investment make it unwise to do so.

In turn, this means that the respective parties have an explicitly right to act unilaterally to allow natural persons from the other party’s territory, without entering into further bilateral negotiation, and while reserving their precious ‘sovereignty’.

Of course the UK invoking won’t immediately lead immediately to freedom of movement as we knew it. First the EU will have to agree informally (outside of formal bilateral negotiations) to reciprocate, assuming the UK is the first mover (and this is likely given UK’s needs).

And second, there will initially be a need to develop a visa system where people wanting to travel & live both ‘sides’ have to tick a box to say that their residence in the other party’s territory is in the interests of the fulfillment of Title II of the Agreement.

But that can develop over time, just as what we now call Freedom of Movement developed from initial agreements on workers’ with jobs being able to move, to workers’ families being able to move, to workers and jobseekers being able to move, and people eventually forgetting that in EU law freedom of movement is not absolute, but became so in practice (and of course we should remember that it was the UK in particular which made freedom of movement pretty well totally free, while other states retained their own requirements around proof of earnings, health insurance, and housing before the granting of resident permits, all quite legally within EU law).

And as with freedom of movement steadily regained by permissible unilateral but reciprocated actions taken by sovereign entities, we might then see similar developments in trade of goods, though I would expect the movement of persons to be the real trust re-builder.

In the end, the general point is that Labour, even before it comes to power, should be examining the detail of the 2020 text to work out the wins which to be gained without fuss (without any assumed granting of sovereignty) and lead gradually not to a Swiss fix, but a UK one.

Yes, of course I think there’s more political space for Labour to talk up a straight re-entry into the Single Market than they think there is, but I also understand the fear of a 2019 repeat stalking them, and bilateral unilateralism, at least in the next 2 years, is safer.

And if they don’t go there, there is still a risk that the Tories will find a way to do so. Who knows? That’s maybe what last weekend’s Swiss message was about, though I doubt they’re quite clever enough for that, at least at this stage.

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Paul Cotterill

Secretary General, Habermasian Labour (UK). Indefatigably focused on the promotion of ethical discourse in the public sphere, except when there's cricket.