Saturday, 9 March 2019

How the Foreign Office kept open an EEA parachute

On the 22nd of March last year, I was in Oslo Meeting Norwegian Ministers about fisheries. Our then Ambassador to Norway explained to me that she had had a busy week. The Foreign Office had placed her on stand-by to hand deliver a letter to the Norwegiangovernment giving 12 months notice of our intention to leave the EEA, as required under article 127 of that agreement. In the event, the so called "implementation period" was agreed on the 19th of March so she was stood down. The letter was never delivered and the UK government took a conscious decision not to leave the EEA.
This made me curious. From the very beginning, the official line from the government had been that "it believed" we did not need to give notice to leave the EEA. It was argued that, although the UK was a direct signatory to the EEA agreement, it was essentially an agreement between the EU and the EFTA states. The most fashionable legal interpretation had been that our membership of the EEA automatically fell away once we left the EU. However, if that were really true and if that were the only possible legal interpretation, why was our Ambassador armed with a letter and on stand-by to hand deliver it to the Norwegian government.
After much probing of government lawyers, what I finally established is that there is more than one possible interpretation as to whether we need to give notice to leave the EEA. In fact, a more accurate interpretation is that we remain bound by the EEA agreement as a signatory to it but that if we leave the EU but don't simultaneously join the EFTA pillar, the agreement would become inoperable. 
Foreign Office lawyers thought that, if no "implementation period" was agreed, the Cabinet might quickly resolve to leave with no deal at all. If that happened, they had established that we should give notice under article 127 before the 29th March, otherwise we would be exposed to a potential challenge from other parties under the Vienna Convention. Someone in the Foreign Office, probably at official level, also had the foresight to recognise that a future government might want to retain the option of adopting a different legal interpretation should the political facts require it. So a decision was taken not to give notice and the letter was scrapped, using the advent of an "implementation period" as the excuse.
If the PM's agreement fails, I am personally for no deal. However, as we stare into the abyss of this current political crisis, we need to be ready to make a political choice about the legal interpretation we choose to adopt. It is not just about lawyers with their lever arch files. What if an alternative arrangement simply consisted of asserting our existing rights as an EEA member and agreeing with the other parties that we will transfer from the EU to the EFTA pillar? We would leave on time, there would be no backstop, no customs union, no problems at the border and no more Groundhog Day of Brexit debate.

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