Secondly, even though some people thought leaving the EU meant leaving the EEA, others said we could leave the EU and stay within the EEA – including Nigel Farage: “There is absolutely nothing to fear from leaving the EU because on D+1 we find ourselves as part of the European Economic Area and with a free trade deal. And we should use our membership of the EEA as a holding position from which we can negotiate, as the EU’s biggest export market in the world, a good deal”.
Thirdly, even if some people believed leaving the EEA was an automatic consequence of leaving the EU, if the government is wrong about leaving the EEA automatically, it would be unfair and unjust for the Government to portray people’s mistaken belief that ‘leaving the EU means leaving the EEA’ as an active vote to leave the EEA, especially when we do not know how many would have voted to leave the EU but stay in the EEA if given the chance. So there is no “popular mandate” either.
Q:What about border control?
‘Freedom of Movement’ is one of the four freedoms which arise under the EEA Treaty. Citizens of the EEA states have the freedom to establish themselves and live in another EEA state. Whilst these rights replicate the ‘Four Freedoms’ established under EU law, the restrictions which a country can place on these four freedoms under EEA law are tougher than the restrictions which can be placed over their equivalent freedoms arising under EU law. If we left the EU but remained in the EEA, we could exercise much greater control over our borders if we wished to under Article 112 EEA. Also, Liechtenstein even has a quota on the number of EEA citizens who can reside within its borders. This model of border control is not an exception to the rule, but a precedent for how the UK could manage its borders under the EEA treaty.
Q: What about EU contributions?
When we leave the EU these will end. However there is a ‘membership fee’ for being in the EEA. But this money will not go into the EU budget because we are not EU members. It will go into a separate fund which the British Government will dictate on what projects it is spent in the same way as the ‘Norway Grants’ are allocated to non-EU projects designed to alleviate economic disparity in southern Europe.
Q: What about all those EU rules which would be imposed?
Matthew Elliott, CEO of Vote Leave said this about EU rules as they apply to Norway (a non EU member of the EEA):
“Norway’s EEA membership is often written off by its critics rather simplistically as ‘fax democracy’. This is because of the impression that all Single Market-relevant legislation passed by the EU must be applied by the EEA states, and that they have no say in such legislation’s drafting, amending or enacting. This is a woefully reductive analysis. It is untrue to suggest that Norwegians have no input.”
In fact, not only does Norway have a say in how regulations and directives are drawn-up – it sits on or have input into all the relevant committees and consultations at every stage of the EU legislative process – it can, and has, vetoed EU rules. In fact, Norway only implements about 17% of EU regulations – those directly relevant to the trading rules of the Single Market. And of course, Norway is outside the EU customs union so perfectly free to agree trade deals with the rest of the world.
Q: What is Article 127?
Article 127 of the EEA Treaty is the ‘Single Market’ equivalent to Article 50 for leaving the EU. Because the Treaty says the UK is a ‘contracting party’ in its own right, and because the UK Parliament gave the UK Government permission to sign up to the Treaty, we do not simply ‘leave the single market automatically’ when we leave the EU. The Government must ‘trigger Article 127’ to do that. If the Government simply decides to no longer abide by the terms of the Treaty, or recognise the rights and freedoms of EEA citizens under the Treaty, then the Government will be breaching its obligations under international law as well as acting unconstitutionally and unlawfully under UK law.
Q: Why does the Government think we leave the EEA when we leave the EU?
Because the Government believes we are only members of the EEA only in our capacity as members of the EU, and that once we leave the EU we will no longer be bound by the EEA Treaty. The Government refers to Article 126 of the EEA Treaty accordingly. But many specialists in the UK and in Europe believe the Government has misunderstood both this Article and the legal status of the UK as a ‘contracting party’ in its own right. If it is wrong, it will unwittingly act unlawfully by simply regarding the EEA Treaty as defunct once we leave the EU.
Q: What are the legal arguments?
The Government believes we are only members of the EEA treaty because we are members of the EU, so when we leave the EU we ‘automatically’ leave the EEA. If the Government is correct this means ‘hard brexit’ is lawful and mandated. But if the Government’s position is incorrect (and we believe it is) then in order to leave the EEA, the Government must do two things:
- Secure Parliamentary permission to repeal the EEA Act 1993 (an Act of Parliament which gave the UK permission to sign the ‘single market treaty’ the following year)
- Trigger Article 127 of the EEA Agreement  to give 12 months notice to the other contracting parties of the UK’s intention to withdraw from the EEA treaty.
Until such time as it triggers Article 127 the UK remain full members of the single market, and bound by our international obligations, with all our international rights continuing. Should the Government disregard the obligation to trigger article 127 and simply act that in leaving the EU, the rights and obligations under the (separate) ‘single market treaty’ have also ended, the Government would be acting unlawfully and unconstitutionally.
Why do we remain members of the EEA after we leave the EU?
Our membership of the EEA arises from two sources. Firstly through our membership of the EU. Secondly because we are contracting parties with the other members of the EU and EFTA in our own right. When we leave the EU our EEA membership continues until such time as the UK Government decides to end our membership in our own right by triggering Article 127.
The Government believes we leave the EEA automatically because it has misunderstood the intent of Article 126, the article it states limits the territory to which the EEA agreement applies. The need for a specific clause on ‘territories’ arose under the EEA Agreement (as under the EU Treaties) because of those Contracting Parties, like the UK, which are diplomatically responsible for territories or dependencies beyond their borders which are otherwise self-governing. EU law uses the term ‘territories’ as a means of distinguishing such polities from ‘Member States’. If the intent of Article 126 was as the Government believes it would have used ‘member states’ rather than ‘territory’.
Q: Why does this matter?
Adrian Yalland says: “By acting unlawfully the Government risks the legitimacy of Brexit. By preventing Parliament having a say, the Government undermines the purpose of Brexit. I have spent 25 years campaigning to have the sovereignty of the UK Parliament and the supremacy of British courts re-established. I do not wish to now see the British Government defeat the very purpose of Brexit by ignoring the rule of law or ignoring Parliament.
“Those who like me campaigned for Brexit on constitutional grounds cannot now be silent as the Parliamentary sovereignty we have just won back is ignored by a Government which has misunderstood the law. For Brexit to be legitimate, it must have both a democratic mandate and be lawfully instituted. This includes ensuring it fulfils its obligations under international law and does not remove the rights of UK citizens arising under the Single Market treaty unlawfully.”
Peter Wilding says: “The issue of whether we Brexit divided the UK. But the issue of how we Brexit can unite us again. By pursuing a ‘winner takes all’ Brexit, a Brexit of appeasement designed to placate hard-core hard-brexiters, we risk the unity of the country, the prosperity of the economy and the stability of Europe. Very many ‘leave’ voters want to stay in the single market, meaning a hard brexit would only have narrow appeal. The majority would be ignored in a “winner takes all” Brexit intended to pacify vocal, well-funded vested interests who want to turn the UK into the Singapore of Europe.
This is not the win-win, smart Brexit we were promised. It is a narrow Brexit which will help the rich get richer and disadvantage those who are only just coping.In law, hard Brexit has no mandate and may not even be needed to manage the expectations of the UK on border control and EU contributions. The EU knows the Single Market is the ace up the UK’s sleeves – so if we are not automatically forced out when we Brexit then that means the EU cannot use the Single Market as a bargaining chip. It is essential the law on this point this clarified before the Government throws away what could be its ace card.”