LONDON — A leaked letter sent by a former member of the Brexit department allegedly says Theresa May’s government believes it may require unique legislation to take Britain out of the single market.
The letter, sent by former minister for the Department for Exiting the European Union (DExEU) George Bridges and seen by Mlex Market Insight, says that the government is considering steps to “formally terminate” Britain’s membership of the European Economic Area. The EEA is a European treaty giving full single market access to all 28 EU member states plus Norway, Lichenstein and Iceland.
“Once we leave the EU, the EEA Agreement will no longer be relevant for the UK. It will have no practical effect,” Bridges said in a letter to fellow members of parliament. “We are considering what steps, if any, might need to be taken to formally terminate the EEA Agreement as a matter of international law.”
The government’s position has up until this point been that Britain will leave the EEA as part of its departure from the European Union in March 2019. A government spokeswoman reiterated this stance on Friday, telling Mlex Market Insight that the EEA Agreement would “automatically cease to apply to the UK” after Brexit. “The UK is party to the EEA Agreement only in its capacity as an EU member state,” she added.
However, whether the government is correct in its assertion that EEA membership ends with EU membership is a matter of legal debate that has yet to be resolved in a court of law.
What is the legal debate surrounding the EEA?
The EEA refers to a group of countries including all EU member states plus Iceland, Liechtenstein and Norway. All members of the EEA — including those which aren’t members of the EU — enjoy full access to the European single market. Britain is currently a member of the EEA as well as a member of the EU.
There is a big legal debate yet to be solved on whether the UK government is able to take Britain out of the EEA simply by triggering Article 50 of the Lisbon Treaty, the formal mechanism for leaving the EU.
As stated, the government’s position is that by triggering Article 50 Britain will automatically depart from EEA on the assumption that Britain is a contracting party to the EEA treaty as an EU member state. However, the government faces opposition from lawyers and campaigners who argue Article 50 does not extend to Britain’s EEA membership, and that Prime Minister May must trigger Article 127 of the EEA agreement in order to exit the EEA.
“Article 127 of the EEA agreement states that you have to give at least 12 months notice if you want to leave. This suggests that the withdrawal process is separate to that of Article 50,” British Influence’s Jonathan Lis told BI in December. The High Court ruled in February that it was too soon to make a judgment on this legal question.
What does this mean for Brexit?
This letter tells us that the government is not sure whether separate legislation will be needed to terminate Britain’s membership of the EEA by triggering Article 127. If legislation is required, then Prime Minister May will need both Houses of Parliament to vote in favour of leaving the EEA, and by extension, the European single market.
The Conservative government would likely try overcome this by using the repeal bill — officially called the European Union (Withdrawal) Bill — as a means of terminating Britain’s membership of the EEA treaty. The Bill, which will be put before Parliament in September, would give government sweeping powers to amend large swathes of law, including international treaties, ahead of Brexit, without parliamentary approval. A Lords committee warned earlier this year that the Bill will hand government abnormally-large levels law-making power typically exercised by Parliament.
However, MPs will be able to propose amendments to the Bill which could prevent the government from terminating Britain’s membership of the EEA. Peter Wilding, who took the EEA case to High Court in February, is already lobbying MPs to ensure the Bill isn’t used to end Britain’s EEA membership, MLex Market Insight reports.
Of course, Britain could not simply rejoin the EEA overnight. The treaty currently refers only to EU members and members of the European Free Trade Association. Britain will be in neither of these clubs once the Article 50 process has reached a conclusion, and so would have to apply to join the EEA.
However, in an interview with BI last week, former EU Official Sir Michael Leigh said he believed the EEA member states would be happy to accept Britain as a new member. “They would be happy,” he said.
“In a way, it would breathe new life into the EEA and EFTA. Britain is a far larger partner than any of them,” the former European Commission Director-General said.
“For Britain to join the EEA in its own right, I think the members would welcome that.”
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