Monday 28 November 2016

Another Brexit conundrum ~ a note

The BBC 28th November - Brexit: Legal battle over UK's single market membership - reports that  "the government is facing a legal battle over whether the UK stays inside the single market after it has left the EU ...... Lawyers say uncertainty over the UK's European Economic Area membership means ministers could be stopped from taking Britain out of the single market.  They will argue the UK will not leave the EEA automatically when it leaves the EU and Parliament should decide.  But the government said EEA membership ends when the UK leaves the EU."

The government's appeal
against the High Court's decision in Miller and dos Santos v Secretary of State for Exiting the EU is due to be heard by the Supreme Court over 4 days commencing 5th December.  Essentially, this case turns on a question of domestic law concerning the scope of prerogative power in relation to treaties - that is, may the Minister "trigger" Article 50 using prerogative power so that the consent of Parliament is not required.  Determining the existence of prerogative power and its scope has been a question of law for our domestic courts since at least the famous cases of the 17th century such as the Case of Proclamations 1610.

The EEA dates from 1st January 1994.  Today, the EEA comprises EU member States together with Iceland, Liechtenstein and Norway.  Switzerland has a bilateral agreement with the EEA.

A legal question over the basis of the UK's European Economic Area (EEA) membership would not appear to be a matter that our national courts could resolve but it is an interesting question that could be raised in fresh domestic legal proceedings aimed at requiring the consent of Parliament before notice is given to the EU under Article 50 (Treaty on European Union).

The EEA Agreement is the principal legal document of the EEA.  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."

Monckton Chambers have helpfully published the text of a speech - Judge Baudenbacher's speech on whether EEA is an option for the UK.  Judge Baudenbacher is President of the Court of the European Free Trade Association (EFTA).  The speech indicates that States have EEA membership either by virtue of being EU members or by way of separate arrangements (e.g. Norway).  The UK is a member of the EEA because it is a member of the EU.  Baudenbacher said:

"A second topic, which has been discussed in your country,is whether the UK will lose EEA membership the day it leaves the European Union. I think yes. A State can only be an EEA Contracting Party either qua EU membership or qua EFTA membership. That follows from the two pillar structure of the EEA Agreement.  You are either in the EU pillar or in the EFTA pillar, but you cannot be floating around freely...."
If this view is correct - and it is a very influential opinion - the UK would have to somehow transfer from the EU pillar to the EFTA pillar and that would necessitate the UK joining EFTA.

For further views see Cambridge University - Opinion: Latest Brexit legal challenge will not be 'back door' to single market and also Monckton Chambers - Professor Panos Koutrakos - Brexit. EEA membership and Article 127 EEA.

We certainly live in interesting times!  Let's see how this one goes.

Earlier post - Beyond Brexit: EFTA and EEA?

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