The EEA would deliver us to the pre-Maastricht position of a commercial treaty between sovereign nationsby George Trefgarne / March 4, 2019 / Leave a comment
Some time in the next two weeks, Geoffrey Cox, the splendidly Rumpolean Attorney General, is expected to return from Brussels, flourishing a piece of paper. The Northern Ireland “backstop” is amended, he will announce. We can get out of it. Here is my new legal advice. And this modified version of Theresa May’s Brexit deal will pass in parliament, perhaps after a short extension of Article 50 for ratification purposes.
But suppose this comfortable outcome does not happen? What happens if Cox fails? Will Britain have to request a humiliating lengthy extension of the Article 50 process, perhaps with a view to reversing Brexit altogether?
Not necessarily. Another choice which remains on the table, is the so-called Norway option, or falling back on the UK’s existing membership of the European Economic Area (EEA). Critically, this is a separate treaty to the EU treaties to which we are signatories in our own right. And it remains on the statute book via the European Economic Area Act, 1993, which has not been repealed. The Norway option has several advantages which ought to make it a compelling proximate objective to deliver the referendum result, while avoiding the many other risky and chaotic options such as a no-deal.
The EEA was conceived by former Commission president Jacques Delors to “promote a continuing and balanced strengthening of trade and economic relations” by widening access to the single market beyond EU members. It is quite similar to the transition period envisaged in the Withdrawal Agreement, but with greater sovereign rights and protections.
The government’s legal position on the EEA has evolved. Initially, it claimed we were leaving the treaty automatically as a consequence of leaving the EU. But following challenges in the courts (including a Judicial Review in 2017) and by Lord Owen (the former Labour foreign secretary), it now claims the treaty will “no longer be operative” and that it intends to incorporate an exit in the EU Withdrawal Agreement Bill. That provision may not pass.
The EEA treaty has two governance pillars. We are leaving the EU one, adjudicated by the European Court of Justice, and this does indeed make the treaty inoperative. But we can make the treaty operative again by applying to join the other, European Free Trade Association (EFTA) pillar. On top of that pillar sits the EFTA court and co-existing happily inside…