The Think Tank British Influence will seek a judicial review on the matterby Jonathan Lis / December 2, 2016 / Leave a comment
The European Economic Area (EEA) was an unlikely topic of conversation on breakfast radio this Monday morning. Although many of us are by now quite familiar with the basic structures of the EU, the EEA is a far more obscure cousin, poorly understood even by some EU experts. Comprising the 28 EU member states, plus Norway, Iceland and Liechtenstein, it offers single market access in almost all sectors except agriculture and fisheries. The non-EU states are expected to implement the four freedoms of movement of goods, services, capital and people (with discretionary safeguards not individually available to the EU states), but do not pay directly into the EU budget, retain their legal sovereignty, and have the right to establish bilateral or multilateral free trade agreements.
Because just under 99 per cent of the EEA’s population also live in the EU, with much deeper political and economic integration, the bloc is seldom discussed in the corridors of power in Brussels. Its fleeting moments in the British spotlight during the referendum campaign emerged when Remainers and Leavers both analysed the merits of the so-called “Norway option” after Brexit. Even in the months since, the EEA has normally been referred to as an organisation to which Britain would have to re-apply after the negotiations, with the theoretical possibility of a veto by any other contracting party—including Liechtenstein, a country smaller than King’s Lynn. But this remains an assumption: and if our Think Tank, British Influence, is correct in its contention that the UK may be party to the EEA Agreement in its own right, rather than as a member of the EU, then we cannot be ejected from this looser European club by the EU.
But could we, in theory, be ejected by the Prime Minister instead?
At the moment, the UK Government is insisting that our membership of the EEA is coterminous with and subsumed into that of the EU, and so Article 50 covers our departure from both organisations. The EU, unsurprisingly, agrees. The main argument in their favour is an interpretation of the agreement that suggests contracting parties must be members of either the EU or EFTA, a free trade area which encompasses the three non-EU EEA states plus Switzerland. Clearly, after Brexit, the UK will be in neither grouping.
There is, however, a strong legal case that membership of the EEA is distinct from that of the EU. Article 127—the EEA’s answer to Article 50—declares that “each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing,” suggesting a withdrawal procedure separate from Article 50. Perhaps even more compelling is the existence of the European Economic Area Act 1993, a UK Act of Parliament which enshrined Britain’s membership of the EEA in domestic law. As has long been established, what parliament has enacted, only parliament can repeal.
So if this broad legal proposition is upheld—no mean feat, given the united (but perhaps differently motivated) opposition of the UK and EU—then the government is left with two options.
The first is to embrace Britain’s EEA status, either on a transitional or longer-term basis. What had been individually ratified could not be taken away by the EU, even in the case of a breakdown in negotiations. Consequently, the EEA would offer Britain a precious negotiating tool, potentially forcing a recalibration in the power dynamics of the Article 50 talks.
The second option is to leave the EEA—a so-called “hard Brexit” outside the single market. Although Article 127 could be subject to the same tussle between the royal prerogative and statute that has occurred with Article 50, in any event it would appear certain that the European Economic Area Act would have to be repealed by parliament in the normal way.
British Influence were branded “enemies of democracy” in Tuesday’s Daily Express for daring to suggest that the government may be about to act unlawfully in its consideration of a British Act of Parliament and the single market, and announcing our intention to push for a judicial review on the matter. We suggest that some of the basic tenets of British democracy are the rule of law, the ability to challenge the government, and the sovereignty of parliament. Margaret Thatcher, for all her divisiveness, helped engineer and drive through one of the greatest gifts of EU membership, the single market, hitherto embraced by those on the left and right. It guarantees jobs, free trade, efficient regulation and ultimately national prosperity. There was no unified position on the Leave campaign to throw it away, and many Brexiteers consider it the one thing about EU membership they want to keep. Parliament has a right—and, we contend, a constitutional obligation—to debate our membership, and to choose whether or not to discard it.
With so much bathwater being thrown out in Britain and beyond, it is time to bring people together and if we can, hold on to the baby.