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The importance and role of the European Economic Area (EEA) Agreement has often been overlooked. Yet, as the UK exits the European Union, the question of the UK’s desired relationship with not only the EU27 but also the EEA30 has never been more live. In a previous blog post I argued that the UK has not notified its intention to leave the EEA as required. This post examines the domestic law implications of this conclusion.
On 20th December 2018, the day after Parliament rose, the Government published an ‘EEA EFTA Separation Agreement’. This was accompanied by an ‘EEA EFTA Explainer’. To date, the EEA EFTA Separation Agreement has been ‘agreed,’ but not ‘signed’. Subsequently, on 8th February 2019, the Government published another draft agreement, the ‘EEA EFTA No Deal Citizens’ Rights Agreement’.
Turning to the intended ratification of the EEA EFTA Separation Agreement, this post addresses the domestic process for entering to and ratifying treaties. It considers that there is scarcely sufficient time for the application of Constitutional Reform and Governance Act 2010 (‘CRAG’) to ratify the EEA EFTA Separation Agreement.
European Union (Withdrawal) Act 2018
The European Union (Withdrawal) Act 2018 (‘EU(W)A 2018’) addresses the EEA Agreement but in rather an obscure manner. While the UK courts are very likely to be reluctant to look into Parliament’s intentions, it seems curious that full primary legislation is required to exit from the EU, but that departure from a separate legal order can be effected by way of Schedule 8 — ‘Consequential, transitional, transitory and saving provision Part 2 — Specific consequential provision’ of the EU(WA) 2018.
The House of Commons Library discusses the domestic basis for withdrawal from the EEA in rather a sceptical fashion in its briefing paper on the European Economic Area (Number 8129, 21 December 2018 at [9.3]). While the EEA Agreement is mentioned at a number of points in the EU(W)A 2018, it is only c. 16 Sch. 8 paras. 24 to 28, which amend the European Economic Area Act 1993. Paragraphs 23 and 24 of Schedule 8, Part 2 EU(W)A 2018 provide:
‘23 The European Economic Area Act 1993 is amended as follows.
24 Omit section 1 (EEA agreement to be an EU Treaty).’
Section 1 of the European Economic Area Act 1993 provides:
‘In section 1(2) of the 1972 Act, in the list in the definition of “the Treaties” and “the Community Treaties”, there shall be added at the end the words “and
(m) the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 together with the Protocol adjusting that Agreement signed at Brussels on 17th March 1993’.
The action of para.24 of Schedule 8 Part 2 EU(W)A 2018 in omitting the classification of the EEA Agreement from the definitions provision (s.1(2)) of the European Communities Act 1972), which is a classification within domestic law alone, may perhaps be sufficient for the purposes of domestic revocation. Yet, the contrast between para.24 and the European Union (Notification of Withdrawal) Act 2017 could not be more stark. Moreover, even if para.24 is sufficient for the purposes of domestic revocation of the incorporated EEA Agreement, it does so only at the domestic level: the UK remains a Contracting Party to the EEA Agreement at the European and international law level.
Ratification, the Constitutional Reform and Governance Act 2010, and Parliamentary procedure
In brief, in the UK, the Government negotiates, signs and ratifies treaties under the Royal Prerogative, with only a limited role for Parliament. The following is the general procedure; there are of course exclusions and exceptions. Once it has been negotiated, the Government signs the finalised treaty. As the Foreign and Commonwealth Office’s Treaties and Memoranda of Understanding (MOUs) Guidance on Practice and Procedures p.4 notes ‘The UK, however, does not sign a treaty unless it has a reasonably firm intention of ratifying.’ Parliament makes any necessary domestic legislative changes for the treaty to apply. The Government lays the signed treaty before Parliament, where it is subject to CRAG. Once, the treaty has passed the necessary period in Parliament, and there are no outstanding resolutions it, the Government may ratify the treaty.
In the present situation, the EEA EFTA Separation Agreement will need to be incorporated into domestic law in order to have effect in UK courts, but it is intended to ‘only apply if the Withdrawal Agreement is concluded between the EU and the UK.’
Lord Ahmad of Wimbledon, of the Foreign and Commonwealth Office, provided as an answer to a written parliamentary question (HL12669) that the EEA EFTA Separation Agreement ‘will be subject to the provisions of the Constitutional Reform and Governance Act 2010’. The same statement is made at para. 1.2(5) of the EEA EFTA Explainer. In greater detail, on 20th December 2018, Lord Callanan, Minister of State for Exiting the European Union (HLWS1187), quoted the Secretary of State for Exiting the European Union, ‘I will be depositing these agreements and explainers today in the Libraries of both Houses. The Government intends to sign both agreements before exit day and legislate for them through the EU (Withdrawal Agreement) Bill. Both agreements are subject to ratification processes in each of the relevant states, including the provisions of the Constitutional Reform and Governance Act (CRaG) 2010 in the UK.’
To date, the EEA EFTA Separation Agreement has been ‘agreed,’ but not ‘signed’. The Foreign and Commonwealth Office’s Treaties and Memoranda of Understanding (MOUs) Guidance on Practice and Procedures p.2 states that ‘Original treaty documents should always be sent to Treaty Section [Legal Directorate, FCO], which arranges for their publication as command papers and laying before Parliament.’ Consequently, the EEA EFTA Separation is yet to be laid before Parliament.
CRAG requires that the EEA EFTA Separation Agreement must be laid before both Houses in the form of a command paper either in the Miscellaneous Series or, less likely, the European Union Series for 21 sitting days defined as days upon which both Houses sit (s.20(9) CRAG). During this period the treaty may not be ratified. Both Houses can resolve against ratification: the Lords once only, and the Commons repeatedly (triggering a new 21-sitting-day period each time).
The calculation of sitting days is difficult. The Leader of the House of Commons, for instance, may determine that the House will sit on a Friday that had previously looked like a non-sitting Friday. At present, it appears as though the Government will have to lay treaties by 22nd February before Parliament if it will honour the full 21-day period and for those treaties to be ratified before 29th March. A weekly list of treaties subject to CRAG – with the last date for objections – is available here. It must be noted, however, that s.22 CRAG allows the usual 21-sitting-day period to be curtailed or avoided in ‘exceptional cases’ so long as the treaty is laid before Parliament at some point and the circumstances explained by a Minister. Interestingly, in a letter of 13th February 2019 to the Chair of the House of Commons Procedure Committee, the Secretary of State for Exiting the European Union, the Rt. Hon. Steve Barclay MP, wrote, ‘In respect of international agreements which are concluded to ensure continuity to existing EU agreements following the UK’s withdrawal from the EU, the Government’s intention is to lay treaties subject to ratification under the 2010 Act [CRAG] in the normal way, but cannot exclude the possibility of using section 22 if an exceptional case should arise which justified its use.’
Both the House of Commons and the House of Lords intend to scrutinise the forthcoming Brexit-related treaties. The Chair of the House of Commons Procedure Committee, Charles Walker OBE MP set out the Commons’ intentions in a letter of 6th February 2019. In the House of Lords, the Procedure Committee decided on 14th January 2019 that the European Union Committee should, until the end of the 2017-19 session of Parliament, be responsible for scrutinising Brexit-related treaties or international agreements. To that end, ‘the EU Committee will do “due diligence” on the legal and policy implications of all Brexit-related treaties and international agreements published between now and the end of the session. It will report on all these agreements, to help Peers in identifying those of particular interest, so that they can, where appropriate, table resolutions or motions to debate them.’ The European Union Committee’s intention is to report around 10-14 days before the deadline is reached in order to provide time motions for debate is to be tabled. A helpful flowchart of the scrutiny process may be found here. The treaties scrutinised and ‘sifted’ may be found here. The European Union Committee’s reports, evidence, and correspondence with Ministers may be found here.
Article 71(2) of the EEA EFTA Separation Agreement requires (as regards the UK) that the UK deposit its instrument of ratification, acceptance or approval with the Norwegian Government as Depositary by 30th March 2019. The consequence of the minimal time available for ratification is that were either House minded to resolve against ratification the draft treaty will almost certainly require amendment. Importantly, the ‘continuity’ effects sought would become redundant were a temporal gap to be introduced. However, as time goes by it becomes increasingly likely that the Government may seek to rely on the ‘exceptional cases’ exception in s.22 CRAG. The UK Government may also seek to engage provisional application of the EEA EFTA Separation Agreement, potentially on the basis Article 25(1)(b) of the Vienna Convention so long as the ‘negotiating States have in some other manner so agreed’. However, whether the UK Government may do this in order to avoid s.20 CRAG is open to debate.
As an alternative arrangement, the EEA EFTA No Deal Citizens’ Rights Agreement has been prepared. This alterative treaty will be addressed in a separate post.
The UK Government’s policy of creative ambiguity towards withdrawal from the EEA Agreement ended when it ‘agreed’ the EEA EFTA Separation Agreement. This blog post contends that arguably the UK has not taken the requisite appropriate action at the domestic level to withdraw from the EEA. Finally, it is challenging to believe that the UK will be able to deposit its instrument of ratification of the EEA EFTA Separation Agreement by 30th March 2019 unless the emergency power in s.22 CRAG is used.
This blog post is based on part of a forthcoming article by the author. The author would like to thank in particular Arabella Lang, Parliament and Treaties Hub, House of Commons, and Dr. Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law, for their invaluable comments and knowledge. All errors remain the author’s own.
Michael-James Clifton, Chef de Cabinet, Chambers of Judge Bernd Hammermann, EFTA Court. All views expressed are entirely personal.
(Suggested citation: MJ Clifton, ‘Parliament’s Role in Withdrawing from the EEA, and Difficulties in Ratifying the EEA EFTA Separation Agreement’, U.K. Const. L. Blog (21st Feb. 2019) (available at https://ukconstitutionallaw.org/))