The EEA treaties offer little of use

London 4 Europe Committee member and former Home Office senior civil servant Michael Romberg is doubtful about the value of the EEA emergency brake.

Proponents of the EEA mechanism

Some Remainers (including Nick Clegg) argue that we could stay in the single market and assuage popular concern about EU immigration by use of the emergency brake available to EEA members, either because the EU will give it to us after all (surely a fantasy) or by joining the EEA.

Before the referendum vote, some Leavers used to see EEA membership or something like it as a potential solution, for example Richard North, Conservatives for Liberty, Campaign for an Independent Britain; at that time some Leavers did not see it as axiomatic that Brexit meant leaving the single market. (Some Leavers continue to push for it, eg EFTA4UK.)

What the Treaty says

Articles 112 & 113 of the EEA Agreement allow EFTA member states or the European Commission to take unilateral safeguard measures in the face of serious and persistent economic, societal or environmental difficulties.

I can only find two references to the actual use of that provision: in 2008, Iceland restricted the free movement of capital.

When Liechtenstein joined the EEA in 1995 it negotiated a three year transition period on freedom of movement of people and other issues. At the end of the transition period in 1998 Liechtenstein pulled the emergency brake. In 1999 Liechtenstein negotiated a renewable five-year agreement which allows it to restrict the number of EEA nationals who may live and work in the country. That agreement remains in force.

Could the emergency brake work for the UK?

Of course the EU’s freedom of movement rules can be changed or suspended. They are human laws, not the laws of physics. But the EU has shown no interest in doing so on any scale (President Macron’s wish to modify the posted workers directive would not address major concerns in the UK).

And it is surprising that the UK considers the possibility when we never – not even when Theresa May was Home Secretary – consistently made use of the powers we already have, for example to expel EU citizens who had been here more than three months, were unemployed, had no prospect of finding a job and could not support themselves.

Nor is Liechtenstein much of a precedent. It has a population of 38,000. It would appear at about No 258 in a list of UK towns by population, between Long Eaton and Hatfield. The UK population is 66,000,000.

Nor would it be easy for the UK to pull the emergency brake. We would have to show that EU immigration had caused serious and persistent difficulties. True, lots of people do not like immigration. It was a factor to the Leave vote. But the serious studies of immigration show net benefits to the UK.

Moreover, since immigration to the UK from outside the EU (which is wholly under UK control) has normally been much larger than from the EU we can hardly claim that EU immigration is making such a change in the national character that it must be restricted.

Finally, people who cite Articles 112 and 113 should read on: Article 114 allows a member state affected by safeguard measures to take rebalancing measures. It’s not quite retaliation, but it might be hard to spot the difference. Articles 112 and 113 mean throwing a bomb; they are not a normal part of negotiated relations.

Could an emergency brake work in practice?

Suppose that there is a surge in immigration from EU member state Ruritania and the total number of EU immigrants is felt to be too high. The steps the UK government would need to go through are:

• decide whether to limit immigration from Ruritania or from all EU member states. Both will be problematic. Ruritania will say if the problem is too many people why pick on us?; other member states will say if your problem is Ruritanians why end everyone’s freedom of movement?
• decide whether to expel people already in the country or only to apply restrictions to new entrants. Expelling people would obviously be unjust and inhumane. Confining the rules to new arrivals would slow down the reduction in the foreign population that the government is seeking to achieve
• assuming that those EU nationals or Ruritanians who are already here are to be allowed to stay there will need to be a way of establishing who they are. Residence is a trickier term than it sounds – how would it apply to a seasonal worker? A student? What evidence will be needed? How much unfairness will there be in requiring people to create retrospective records of their presence in the UK which they had not been obliged to keep at the time? What will the registration process cost and who will bear that cost? How long will it take? Or should we have residence permits for everyone always just in case we ever wish to pull the emergency brake?
• for new entrants from the EU/ Ruritania there would need to be a visa process. Well, we have one of those for non-EU nationals, so we could just use that. It is expensive, unpredictable and slow. The criteria may or may not be the same that we would wish to apply under the emergency brake.
• for how long would the emergency brake last?
• what happens when the emergency brake is lifted? Would there be a large influx from Ruritania/ EU? Or would it be a gradual increase in the number of visas granted to Ruritanians/ EU citizens?

That of course only lists some of the problems that would need to be addressed.

All these problems are soluble, with time, money, effort and an acceptance of rough justice at the edges.

But we should not fool ourselves that the solution would be pretty.

And let’s be clear: the UK is not in practice able to run the exit checks that other countries run that would be needed to enforce the rules and produce really accurate statistics.

Nor should we assume that the EU27 would look on benignly as we reduced the life-chances of their citizens and highlighted them as a serious social problem.

Conclusion

I suggest that both on policy and practical grounds an emergency brake is an illusion, unlikely ever to be used. Therefore EEA membership or its equivalent would not assuage Leave voters’ concerns over immigration.

Instead, we must make the positive case for immigration.