Richard North, 15/07/2017  

Tucked into the explanatory notes of the EU withdrawal bill is a single paragraph (illustrated) which, potentially, has a devastating effect – assuming it is an accurate reflection of the law and UK government policy on treaties agreed during our membership of the European Union (and preceding Communities).

Although not newly stated, it is the first two sentences which have the most impact: "The UK is a member of the EEA by virtue of its membership of the EU. Therefore on exit day the UK ceases to participate in the EEA Agreement".

This, in itself, is a singular declaration which cuts across much of what I was writing. As far as I have understood the situation (and I'm not alone in this view), the UK is a Contracting Party to the Agreement in its own right, a status which it retains unless or until it formally invokes the withdrawal procedure set out in Article 127 of the Agreement.

This requires one year's formal notice in writing to be given to the other Contracting Parties. The precise format is not stated, but one assumes that a single letter addressed to the EEA Council will suffice.

In any event, the EEA Agreement is a distinct treaty under international law – separate from the EU treaties – and is not covered by Article 50 notification. And, as far as I am aware, no formal notice to leave has been given by Her Majesty's Government. Therefore, we remain in the EEA and the UK mechanism by which we decide to give notice of leaving has been left open.

However, according to UK legislation, specifically the European Economic Area Act 1993, the EEA Agreement is an "EU treaty" for the purposes of the European Communities Act (ECA). This Act implements the EEA Agreement into UK legislation.

Therefore – it could appear - once the ECA is repealed by the European Union (Withdrawal) Act – when it is finally implemented) the EEA Agreement will cease to apply in domestic law. In effect, we will have abrogated the treaty. By this means, we could find ourselves having left the EEA without having invoked Article 127 of the Agreement.

However, it is at this point that I have to admit to being thoroughly confused. If we refer to the text of the withdrawal bill – Specifically Schedule 8 para 12 et seq, we see an amendment which removes Section 1 of the European Economic Area Act 1993. Yet, it is this Section which turns the EEA Agreement into an EU Treaty.

As UK law stands, references to the EU also include references to the EEA, but further amendments to the European Economic Area Act break that link, and the EEA, on exit day, will stand on its own.

If I understand the position correctly, therefore, the explanatory note is misleading- even to the point of being incorrect. With the implementation of the withdrawal bill, the EEA Agreement ceases to be an EU treaty. Therefore, we remain in the EEA unless we formally invoke Article 127 – and there is still plenty of time for that.

As it stands, though, with no notice to quit having been given, it would appear that HMG – whether wittingly or not – has left the back door open to remaining within the EEA.

This could, of course, just be a procedural issue. Arguably (and it has yet to be argued), the Government needs Parliamentary approval to quit the EEA and using the ECA to trigger a withdrawal could be regarded as an abuse of process. The Government, therefore, could simply be biding its time before invoking the formal process.

This notwithstanding, the implications of the statements in the explanatory notes seem to go far beyond the EEA – and those are serious enough. The Government is telling us that the UK is a member of the EEA by virtue of its membership of the EU. Therefore, it says, on exit day the UK ceases to participate in the EEA Agreement.

The point here is that the EEA Agreement is a multilateral treaty: the signatories are the Efta states on the one hand, the European Community (as was) and then each of the member states, which have signed on their own accounts.

By this measure, it is argued that the UK can retain membership of the treaty – all other things being equal – by virtue of the fact that it is a signatory to the treaty in its own right.

With the Government saying that we are members only by virtue of our membership of the EU, however, the question is whether that has to apply to any other multilateral treaty to which we are signatories, alongside the EU. On exit day, it might appear, we cease to participate in any of these agreements.

Currently, according to the EU treaty database, the EU is party to 267 multilateral agreements. Included in these is the recently concluded Paris Agreement on climate change.

It is already the case that we drop out of the 946 bilateral agreements concluded by the Commission on behalf of member states, but it would also seem that we cease to participate in the 267 multilateral agreements as well – if one includes that which we signed up to before joining the EEC.

However, I cannot see this to be the case. One of those multilateral treaties is the Agreement Establishing the World Trade Organisation. Yet there, it is acknowledged by all parties that the UK is a member of the WTO in its own right.

If we are to take the explanatory notes at face value, however, and we are in the EEA only by virtue of our membership of the EU, then that should surely apply to the WTO. That is either the case, or there is a serious inconsistency – or something I am missing (which has been known).

That aside, this reminds us that the EU is currently party to 946 bilateral and 267 multilateral agreements, including all the trade agreements to which we are party. On exit day, we drop out of some of all of those agreements, depending on whether alternative arrangements are made (such as continuity agreements).

This, clearly, is a muddy area, where the UK Government does not seem to be in the business of providing clarity. But if we have something like 1,200 treaties to renegotiate on exit day, then Mr Fox and his merry men and women (to say nothing of all the other departments, including the FCO) are going to be very busy indeed.

comments powered by Disqus

Log in

Sign THA

The Many, Not the Few