Brexit minister's letter gives boost to EU single-market campaigners

European Economic Area

7 August 2017. By Matthew Holehouse.

A new front is opening up in the political battle over the UK's future in the EU's single market.

The campaign by those in favor of remaining in the single market has been given a boost by the disclosure last week of a letter from George Bridges, a former minister in the Department for Exiting the European Union.

Bridges said in the letter — which dates from April but was only published last week — that the government was considering whether it needed to take steps to "formally terminate" its membership of the European Economic Area.

This is an acknowledgement of the doubts which MLex understands exist within government about the precise legal route needed to exit the grouping.

The EEA agreement is a treaty between the EU and Norway, Liechtenstein and Iceland that gives those three nations membership of the bloc's single market.

"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 lawmakers. "We are considering what steps, if any, might need to be taken to formally terminate the EEA Agreement as a matter of international law." Bridges resigned following June's general election.

A UK government spokeswoman said on Friday that the official position remains 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 said.

But the letter from Bridges, who sits in the House of Lords, Parliament's upper chamber, presents an opportunity that pro-single market lawmakers and campaigners are ready to exploit.

Lawmakers plan to force a vote over whether the UK government has the executive power to trigger Article 127, the exit clause of the EEA Agreement. And campaigners fighting to keep Britain in the bloc's single market are also considering fresh litigation to clarify if and how that clause should be triggered, MLex understands.

Alternative route?

The government appears to be preparing an alternative route in case it faces opposition to withdrawing the country from the EEA Agreement.

It has proposed legislation, known as the European Union (Withdrawal) Bill, to grant ministers sweeping powers to amend the statute books ahead of Brexit. The bill states that it repeals Section 1 of the EEA Act 1993, which implements the EEA Agreement in domestic law.

In addition, clause 8 of the bill would give ministers broad powers to make or break international treaties, including provisions that would normally need parliamentary approval.

This appears to be broad enough to grant ministers the power to give notice under Article 127, including if a court were to rule that a piece of legislation by the assembly is required. The UK government spokeswoman declined to confirm if this is the case.

Fresh challenges

In November last year campaigners Adrian Yalland and Peter Wilding sought to test the Article 127 question in the UK courts. They asked the High Court in London to rule that the government would need to consult Parliament to cancel Britain's EEA membership.

But in February, the court said the challenge was premature since the government hadn't issued its position on leaving the single market.

Wilding is now lobbying lawmakers to ensure that the EU withdrawal bill — namely clause 8 — doesn't allow ministers to use executive powers to quit the EEA.

"On the basis of the bill's current drafting, the decision about whether to make an Article 127 notification would fall to ministers and not Parliament," Labour Party lawmaker Heidi Alexander told MLex. "I will certainly be looking to amend the bill to give Parliament the final say."

If the campaign in Parliament fails, Wilding and Yalland will seek a new court challenge to clarify how the notification can be made, MLex understands.

The point for triggering a fresh case in the courts would be March 30, 2018, the date by which the government would have to give notification under Article 127 to be in step with the Brexit timetable.

Even if lawmakers and campaigners succeed in preventing the government from unilaterally quitting the EEA, this may not be enough to keep the UK in the single market: Brussels and the three EEA states would still need to agree to the UK's new status as a non-EU participant.

But a defeat in Parliament on Article 127 could force ministers to reconsider their stance on Britain staying in the single market.

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