Saturday, 3 March 2018

A looming deadline


Last summer I made quite a fuss about two important provisions within the confines of the EEA Agreement. They are Articles 126 and 127, which deal with withdrawal and the scope of the Treaty's application. Some of my more long-term readers will remember work I have written on the legal withdrawal from the EEA, such as here. My position, in summary, was that in order to formally initiate its departure from the Single Market, the UK Government would have to invoke Article 127. And that not doing so would see us enter a period of legal haziness.

Article 127 of the 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." This twelve month period extends to March 29th 2018, a date which sits but a few weeks away. The deadline for invoking this Article is closing in.

Quite what happens if the government does not pull this lever I do not know. Frustratingly, legal opinion is heavily divided on the issue and far be it from me to masquerade as some kind of QC or expert on international law. I try as hard as possible to base my views on the available evidence and will reference those with the expertise as I go. I have found use in following the arguments of the Single Market Justice campaign (led by Peter Wilding and Adrian Yalland), this paper produced by the Institute for Government and this EEA Briefing Paper, which notes:

"The United Kingdom is a separate “Contracting Party” to the EEA Agreement in its own right: so it is bound, in its own right, by the EEA Agreement. It owes obligations under the EEA Agreement to States that are not members of the EU (Norway, Iceland and Liechtenstein), and since it is a basic principle of international law that States are not affected by Treaties to which they are not party, it is impossible to see how the rights of those States (and the rights of their citizens) could be affected by action under the EU Treaties. 
Some commentators have pointed to the fact that Article 126(1) refers to the territory covered by the EEA Agreement as being the “territories” to which the EU Treaties apply (in addition to Norway, 3 Iceland and Liechtenstein). Indeed, this was the Government’s initial position prior to the commencement of the EEA Judicial Review. 
However, the Government then abandoned this position and finally accepted that Article 126 did not “give rise to termination of the EEA Agreement ipso jure”. In fact, if the intent of Article 126 were to limit the Agreement only to states which are at any time member states of the EU (and Norway, Iceland and Liechtenstein), the use of the word “territories” would then be incongruous. 
It is made clear by Article 126(2) that “territories” refers to territories which are not included within the Contracting Parties’ national borders, but for which the Contracting Parties have diplomatic responsibility. Article 126(2) then disapplies the Agreement from some of those territories."

Readers should remember that the European Economic Area is a separate legal entity from the European Union. The EU makes up a large part of that area, with three Efta states (Norway, Iceland and Liechtenstein) making up the other part. A portion of the EU's acquis is transposed into the EEA Acquis, where fisheries and agriculture are notably excluded and the residuals in the framework relate only to trade. The EEA becomes effectively an extension of much of the EU's internal market, so we are left really with two Single Markets, almost totally identical, sitting side by side.

The 2015 Referendum Act did not cover membership of the EEA. And, as per standard UK constitutional requirements, new parliamentary legislation is the only mechanism through which a change in international law can have any domestic effect. Unlike most countries on the continent, we are a dualist state and, since Brexit is rooted largely in a clamouring for parliamentary sovereignty, it seems fitting to honour the process with a little consistency and take the appropriate legal and parliamentary route towards whichever destination this government is steering us.

I notice also that my friend Jonathan Lis has written a useful article on the issue just recently. I was happy to see this because I had completely forgotten about its importance in debate. So much concentration has been placed upon Article 50 (of a separate and legally distinct Treaty) and phase two and transition periods that the EEA elephant in the room has been left marginalised so to speak. This oughtn't continue. We aren't appreciating the enormity of the legal uncertainty which could lie ahead. I am talking the UK operating as a third country (to the EU) and EEA signatory simultaneously. Politically these positions stand in direct contradiction to each other.

Even if legally it is decided A127 invocation isn't necessary, we should still opt to do so for the sake of clarity. Most Efta officials believe that formal notification of withdrawal is congruent with the scope of the agreement. So too do a large number of barristers. The weight of this opinion renders mine valueless but I will make my points regardless. My agenda here is clearly political. Nonetheless a good way to build on the Prime Minister's pragmatic speech this week would be to take our loose ends seriously and tie them up wherever possible.

4 comments:

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  2. Yes - I've been wondering what we'll do about A127 for a while now, particularly if the deadline passes. However, I figured that if the transition period is signed off, it won't matter until 12 months before the end of the transition period since it'll be effectively status quo until then.

    Is it possible that is why it's not being made into such a big deal at the moment? And are there any "gotchas" about moving to transition related to A127 that would lead to legal uncertainty anyway?

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