Should Parliament have a say over whether Britain could remain in the European Economic Area?
The UK Government faces yet another challenge over its determination to take the UK out of the EU and the EEA Single Market without Parliamentary approval which could further complicate Brexit.
The British people on 23rd June 2016 confirmed through the EU referendum result they wanted to leave the European Union. However the big question the EU referendum result did not address was what trading arrangement with our European neighbours should we put in its place. This latest challenge, if successful, is particularly awkward for the UK Government because it gives Parliament an opportunity to vote on whether to stay in the Single Market – an issue the UK Government has been desperate to avoid.
British Influence (“BI”) a Think Tank organisation, which strongly advocates the UK staying within the Single Market, has written to David Davis, the Secretary of State for Exiting the EU to contend that the UK Government has to seek Parliamentary approval to leave the European Economic Area Agreement, an agreement to extend the scope of the EU Single Market to non- EU members, Norway Iceland and Liechtenstein and made between those states and the countries of the European Union. In default of the UK Government agreeing to its demands BI has threatened to seek judicial review of the Government’s position before the Courts.
They argue a further vote is needed, in addition to seeking the approval of Parliament to issue an Article 50 notice triggering EU withdrawal, which is already the subject of a high profile case before the UK Supreme Court set to be heard in early December.
The EEA Case
This latest example of “legal constitutional gymnastics” which have recently been pre-occupying the UK Courts, is based on the premise that Britain will remain a member of the EEA after leaving the EU. BI contends that as the UK entered into the EEA Agreement as an individual Contracting Party in 1993, and not under the auspices of the EU, the UK Government has to give separate notice to withdraw from the EEA pursuant to Article 127 EEA.
Article 127 of the EEA Agreement states:
“Each Contracting Party may withdraw from this agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.
Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”
Given that Article 127 gives an express mechanism for withdrawal, it implies the exclusion of other mechanisms for withdrawal such as leaving the EU.
Similar to the successful arguments advanced before the English High Court in the R(Miller) v. Secretary of State For Exiting the European Union, BI strongly believe that the UK Government cannot use the prerogative to issue an Article 127 notice and must seek legislative approval of Parliament to withdraw from the EEA Agreement. This would give MPs a specific vote on whether to leave the Single Market – something the Government is anxious at all costs to avoid.
The Article 127 argument appears on its face to be “clutching at straws” It is an attempt to produce a result which sits very uncomfortably with the wording of the rest of the EEA Agreement. There are fundamental difficulties with the concept that the UK can stay in the EEA Agreement having withdrawn from the European Union.
While there are indications that an EFTA Member State can be a member of the EEA without becoming a member of the EU (see Article 128 EEA) it does not follow that a member who has been an EU Member but withdrawn can stay an EFTA member on the current terms.
An example of this is Article 126(1)EEA. This states that the territorial scope of the EEA Agreement is limited to territories to which the EU treaties apply plus Norway, Liechtenstein and Iceland. Therefore if the UK withdraws from the EU but stays party to the EEA Agreement it could find itself in the paradoxical situation of being party to an international trade treaty which does not cover the UK.
So in this context the way the EEA Treaty is drafted leads to a number of nonsensical interpretations. Therefore if there remains some uncertainty about the interpretation, operation or meaning of the EEA Agreement it is likely that any Court seized of the matter would feel compelled to refer the matter to the Court of Justice of the EU in Luxembourg for a preliminary reference on a point of law.
The UK Government conversely argues that if you withdraw from the EU you withdraw automatically from the EEA. It elaborates upon its stance by arguing that to be an EEA member, each state has either to be an EU member or an EFTA member. Non-EU countries had created the European Free Trade Association to promote economic and trade links. Current member are Norway, Liechtenstein, Switzerland, and Iceland. UK was a founding member of this organisation but left to join the EU in 1973.
So what is the significance of all this? Surely if BI succeed it will only complicate and delay the Brexit process and will not derail it?
Dependent upon the outcome of UK Supreme Court case Parliamentarians are likely to have vote on whether to approve the triggering of Article 50. It is highly likely that they will feel duty bound to respect the result of the June referendum to leave the EU.
However if there is a separate vote on the giving of an Article 127 notice to leave the EEA the result is more difficult to call as the merits are much more nuanced. The big question the EU referendum result did not address was; what trading arrangement with our European neighbours should we put in its place? Many Members of Parliament feel they should have a vote on this. Voting to stay in the EEA Single Market would not be undermining the UK referendum result but merely a clarification of the terms of leaving the EU.