Tuesday, 8 August 2017

The dishonest case for the EEA

You could be forgiven for thinking the question over the Single Market had been settled. But apparently, some people want to argue the Single Market is nothing to do with the EU.

Their contention is that Britain's Single Market membership, rights and obligations arise from the the 1993 EEA agreement. They are pinning their hopes on Article 127 of the EEA agreement - requiring at least one years notice to quit - as meaning that leaving the EU does not remove Britain from the EEA agreement and hence the Single Market. The EU-supporting think-tank British Influence have launched a legal challenge on this basis.

Their argument over the source of Britain's single market rights and obligations is of course nonsense. Margaret Thatcher signed the Single European Act in 1985 to set in train the harmonisation of laws via Qualified Majority Voting to create the EU's internal market. John Major signed the Maastricht treaty in 1992 which introduced the concept of EU citizenship and rights, which combined with subsequent EU legislation form the EU's Freedom of Movement laws we know today.

The 1993 EEA Agreement simply extended the EU's internal market to the EFTA states - it did not grant rights and obligations to Britain. It takes but a moment's thought to see this clearly. Had Britain not signed the Single European and Maastricht treaties, we would not have been in the Single Market. Had Britain not signed the 1993 EEA agreement, Britain would still be in the Single Market - but it would be a smaller Single Market in absence of the EFTA states.

The EEA agreement creates a two-pillar structure, with EFTA EEA institutions on the one side and EU institutions on the other side and joint bodies to administer and operate the EEA agreement. The EEA Council and EEA Joint Committee ensures homogeneity between the EU and the EFTA EEA states by applying EU laws to the EFTA states and harmonising the judgements of the ECJ and the EFTA Court. There is no EU member state participation in any of these institutions - it is purely an interface between the EU's institutions and the EFTA EEA states. The EU is represented by the rotating EU Council presidency and the European External Action Service (EEAS) - essentially the EU Commission's foreign affairs and diplomatic arm.

It seems self-evident that the EEA agreement is bipartite between on the one hand the "EFTA States" and on the other hand ‘"The Commission and the EC Member States" (Article 2 of the EEA agreement). So it follows that Britain is only a Contracting Party to the EEA agreement by virtue of being an EU Member State and not in its own right. In fact, the Deputy Secretary-General of EFTA has suggested that the EU will likely serve formal Article 127 on Britain's behalf.

Failure to invoke article 127 of the EEA agreement, would not amount to Britain remaining a participant in the Single Market. Post-Brexit, the EU's single market laws will no longer have direct effect in Britain. As a non-EFTA member, Britain will be outside the EEA institutions, meaning there is no mechanism to apply and enforce EEA law (the EU's Single Market laws) in the UK. Moreover, many articles in the EEA agreement are specific in applying only to EU or EFTA states, e.g. Article 28: “Freedom of movement for workers shall be secured among EC Member States and EFTA States”.

Even if it is established Britain is a contracting party to the EEA agreement in it's own right, Britain would only be a party to those areas which fall under EU member state competence. Most of the EEA agreement falls under EU competence, hence most of the obligations and rights are exercised by the EU on member states behalf. Any EEA agreement rights and obligations that fall to Britain outside the EU are minimal and do not amount to Single Market membership.

The legal challenge launched by British Influence aims to force a parliamentary vote on invoking Article 127 of EEA agreement, in hope that a coalition of MP's will vote against. Such a scenario would not retain Britain's Single Market membership - it would simply leave a constitutional and legal void. And these people accuse Brexiteers of inviting chaos !

They also channel the disingenuous Gina Miller in claiming they just wish to see due Parliamentary process. Of course Remain argued that Britain never lost sovereignty as Parliament was required to pass each EU treaty - which they did without legal challenge and with most MP's following the party line. Which simply emphasises that the Leave vote was a vote for government by popular consent and a vote against the political establishment who ignored the public and signed away centuries of self-government that was not theirs to give away.

Finally, there is a galling claim that there is no mandate to leave the Single Market. Despite this being the major topic and clearest dividing line in the EU Referendum campaign. Despite Prime Minister Theresa May's Lancaster house speech making clear the intention to leave the Single Market. A commitment contained in both Conservative & DUP manifestos - and in a slightly weaselly way, the Labour manifesto. A manifesto commitment subsequently included in the Queen's Speech - which Parliament endorsed by voting down Chuka Umunna's amendment to keep Britain in the Single Market & Customs Union by a margin of 322 to 101. By contrast, the Liberal Democrats promise of a second Referendum and retention of Single Market membership made no electoral impact. Quite simply, there is no mandate to stay in the Single Market.

The recourse to legal action over Article 127 seems to me an entirely dishonest approach. To retain Single Market membership, Britain will have to apply to re-join via EFTA. As I have discussed previously, EFTA EEA is a destination, not a transition and opens the path to the Remain long-game of re-joining the EU as an associate member. The Article 127 campaign group are effectively demanding the Government set aside its manifesto commitment and instead pursue permanent EFTA EEA membership (or seek a major EEA treaty change to accommodate non-aligned Britain - which is an arduous process and highly unlikely to be entertained).

Moreover, this approach smacks of the establishment once more over-riding rather than seeking public consent.The UK public support the Government's stated aim of a Free Trade Agreement- it is for those who seek EEA / Single Market membership to make a compelling argument for their case  - not seek a back-door approach to subverting public consent.

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