An unusual judge-led drive to persuade the UK government to resolve the crisis by joining the European Free Trade Association (Efta), the so-called Norway model, is to be promoted by the head of the Efta court himself in a series of speeches in London this month.
The president of the Efta court, Carl Baudenbacher, has also held talks with Japanese government officials in Tokyo to discuss how Efta might help create the predictable Brexit that Japanese industry craves.
His visit coincided with that of Theresa May, the UK prime minister, to Tokyo last week where she was pressed to set out how a Brexit Britain will in future relate legally to the single market.
Both remain and some Eurosceptic MPs are arguing the UK could either join Efta as a permanent solution to its post-Brexit conundrum, or during the two to four-year transition now accepted by the cabinet and opposition.
Baudenbacher will speak to Brexit legal specialists in parliament on 13 September and at Chatham House, the leading foreign policy thinktank, the day after setting out how the Efta court could provide the solution to the impasse between the UK and the EU over their future relationship.
He is treading carefully so as not to be seen to be intervene in an internal UK political dispute but has held talks with the Brexit secretary, David Davis.
Baudenbacher is keen to raise understanding of how his court works and challenge the view it is simply a vehicle to implement decisions of the European court of justice - the EU’s primary court which May has pledged Britain will leave to regain national sovereignty.
He has already challenged a UK position paper on future resolution of disputes between the UK and the EU post-Brexit as failing to understand the independence of Efta from the ECJ. He wrote he was surprised the UK position paper was limited to “law in the books”, by which he meant it took little account of the real dialogue between the ECJ and Efta.
Baudenbacher’s Efta court is the equivalent of the ECJ for Norway, Iceland and Liechtenstein, who are part of the European Economic Area but not members of the EU. Its three judges oversee the application of EEA law (a copy of many EU laws) in those countries, each of which sends one judge.
The UK has previously said it would not join a court that worked in parallel with ECJ rulings and wants to establish a UK arbitration court that takes into account ECJ jurisprudence. But many legal experts believe it will not be possible to agree and establish a totally new dispute mechanism, or court, by spring 2019 when the UK is due to leave the EU, making the Efta option at least in transition the best ready-made compromise.
Writing this week for the London School of Economics, Baudenbacher said the Efta court “has its own voice and on essential questions of European single market law it has gone its own way. Examples can be found in the law of the fundamental freedoms, competition law, collective labour law, internet law or consumer protection law – to name just a few areas. As a court of three, the Efta court cannot decree. It must convince its audiences”.
He added the addition of a British judge to the current court would make it less likely the Efta court would be “outgunned” by the ECJ. He wrote: “Observers have remarked that it has developed its own style. It is clear that with a British judge, the Efta court could further strengthen its profile without giving up the overall goal of realising a homogeneous European Economic Area.”
The two primary drawbacks for the UK of a Norway solution is that it would have to accept the EU rules without directly voting on them, and second it would be required to allow free movement of workers.
The Efta/EEA option is backed by leading pro-remain Labour MPs including Stephen Kinnock, and some Eurosceptics. Kinnock says he wants to build on the recent Labour decision to support continued UK membership of the single market in a transition period and suggests the UK joins Efta at least during the transition.
Many Eurosceptics such as Daniel Hannan have long regarded EEA as a possible compromise.
David Davis, the Brexit minister, speaking on Friday in the US, said he did not put the UK applying to join Efta at the top of his negotiation list, saying “It does not save us very much time. It has its own negotiation issues. Our enemy is time”.
The former head of the EU legal service, Jean-Claude Piris, writing in E-Sharp magazine, said it was not politically realistic to think the UK would be allowed by other member states to join the EEA or Efta. He argued that existing EEA members such as Norway would not want to take the risk of opening a difficult negotiation with the EU that could lead them to lose their current advantages.