The legal way to exit the EU by 31st October is through a transition in the EEA

The legal way to exit the EU by 31st October is through a transition in the EEA

It is just possible as of today that by 17th/18th October at the European Council meeting, using perhaps even its well-tried mechanism of stopping the clock, an agreement on a EU-UK Withdrawal Agreement under Article 50 can be achieved and the UK leaves the EU on 31st October with Conservative, DUP, some Labour and Independent MPs’ support. That would be by far the best outcome. Yet it is much more likely that there will not be a positive response in Brussels and that there will be no EU-UK Withdrawal Agreement before the House of Commons for the fourth time.

In which case, on 19th October, on instructions from the European Union (Withdrawal) (No 2) Act 2019, more commonly referred to as the ‘Benn’ Act passed into law on the 9th September, the Prime Minister will be forced to write to the EU asking for an extension under the terms of Article 50. But issuing that letter cannot preclude the executive taking other legal actions to protect UK national interests. A rather neglected part of the full Supreme Court judgment on prorogation in paragraph 55 says remember “always that the actual task of governing is for the executive and not for parliament or the courts”. Extension is a device to delay again a decision. It probably does stop a so-called ‘no deal’ under Article 50 but it need not stop the UK leaving on 31st October.

What we need to do before writing any extension letter is for the UK Government to write, preferably now, to all of the 31 other countries who are contracting parties to the European Economic Area Agreement (EEAA), as well as to the EU, indicating that whether or not an extension is granted by the EU, the UK intends to continue in the EEAA as from the 31st October. A separate letter to the three non-EU EEAA members would also ask that the UK can participate in the EFTA governance pillar. If the extension is granted by the EU, the UK will have to continue to talk about a Withdrawal Agreement but it will then be in tandem with the UK being no longer in the EU and still being a contracting party to the EEAA.

Preparations for an exit from the EU on 31st October 2019 must not be reduced but stepped up. The Government has to do this for there is no doubt that some MPs and some in the EU see an extension as the mechanism for the UK to remain in the EU. It is a well-used technique in the past for other EU countries which after unacceptable referendum decisions were subjected first to delay and then forced to repeat referendums. Fortunately, continued membership of the EEAA for a transition period outside the EU can only be challenged in law within the Vienna Convention on International Treaties which the UK will fight. In the EEA Single Market there will be no need for the UK to take recourse to WTO tariff schedules for intra-EEA trade. Irish border problems associated with leaving the EU would be more manageable by virtue of the regulatory harmonisation on SPS and other trade issues that the continued membership of EEA would bring. Even some problems over cross-border customs duties could be reduced and it would be wise for the UK Government to start to unilaterally implement in Northern Ireland the new cross-border trade and customs provisions suggested to the EU as part of the Withdrawal Agreement by Prime Minister Boris Johnson.

Throughout the last three years I urged Theresa May not to foreclose the option of transitioning out of the EU through the EEAA option as we leave the EU because I believe all of Europe would benefit from an EEA transition, rather than to leave with no deal at all. It is important to recognise that the former Prime Minister came very close in March 2018 to submitting the necessary letter giving the mandatory 12-month notice, but at the last moment our Ambassador in Oslo was stood down from delivering the signed letter from Theresa May. That letter would never have been even contemplated if it was not thought to be legally desirable before signing a Withdrawal Agreement under Article 50 a year later, as she planned to do.

Without having delivered the letter, the former Prime Minister has fortunately, intentionally or unintentionally, left open the option of our continuing membership of the EEA but outside the EU. In an EU extension period, the UK can compare any likely Withdrawal Agreement stemming from those talks with continuing in the EEAA, having control of our own fishing negotiations on conservation and other fishing matters and starting our own trade negotiations with other non-EU countries worldwide.

Single Market transitional arrangements underpinned by the European Economic Area Agreement is something which we were anyhow continuing under the terms of all the drafts of the Withdrawal Agreement so far, albeit in an attenuated form, since it prevents us from exercising our rights on fishing and to enter free trade agreements. This relationship to the EEA was purposely obscured for those MPs who wanted to pretend that there was no involvement with the Single Market for a transition period in all the three Withdrawal Agreements offered to us by the EU. Had we accepted without giving the statutory notice, we would have claimed it was justified by saying de facto we were still in the EEAA in the Withdrawal Agreement. The minor legislative changes necessary eventually for completing this move for the UK leaving the EU simply mirror the changes but in the opposite direction to when Austria, Finland, and Sweden – members of EFTA – acceded to the EU. The changes in legislation then were so minor that the legislative changes to the Treaty were not completed for nine years. So, there is no need at this stage to put these minor changes about non-EU membership into the European Union (Withdrawal) Act 2018 which states we are leaving our current status as EU members of the EEA. It is noteworthy that Croatia is already in a different category for EEA membership called ‘provisional’. What is being done is making a minor adjustment to an existing Treaty and such international documents quite often only make the legislative adjustments much later.

Given the build-up of negativity in the EU over whether a Withdrawal Agreement under Article 50 can be negotiated twenty days before the 31st, now is a good time to indicate to all EEA members, including the three non-EU members, that we will be continuing our membership but as a non-EU member after 31st October. This non-EU EEAA transition period can in no way be reasonably depicted as ‘crashing out’ of the EU. In the absence of agreement under Article 50 it takes every possible measure open to us to soften leaving while not being forced into an EU customs union. It renders the Irish backstop null and void. which all along has in reality challenged the core principle of consensus between the parties to the Good Friday Agreement. After a period of adjustment, non-EU EEA membership for the UK during the transition offers a better chance of restoring consensus in Northern Ireland and it is a weakness in the Good Friday Agreement that the Assembly can stay suspended for such a long period and one we all need to try to bring to an end.

What was never given any civil service consideration by David Cameron’s Government was Article 50. He simply announced we would exit through it without any understanding of the very nature of Article 50. It is not a conventional international negotiation. It was designed by two distinguished figures, the former UK diplomat, Lord Kerr of Kinlochard, and by the former Italian Prime Minister, Giuliano D’Amato, both ardent federalists who have made it abundantly clear in public and private that their design of the Article 50 for the Lisbon Treaty was deliberately weighted against the country wishing to leave the EU, in a way that no sensible government would ever invoke it. I have never ceased to argue that the UK should not have used Article 50 of the Lisbon Treaty, since it was a mechanism fraught with so much difficulty for us and that we should have exited through the arbitration procedures within the terms of the Vienna Convention on International Treaties.

The crucial error that the UK Government made in presenting their case before the Supreme Court which started on 17th September 2019, following the Government’s decision on a long prorogation of Parliament on 9th September, was in not demonstrating that the concept of parliamentary sovereignty involves much more than just how long and when Parliament sits. It involves governing in a complex, increasingly international world. We in the UK have evolved over the centuries two separate systems: firstly a separation of powers between the judiciary and Parliament; and, secondly, a fusion of powers between the executive, consisting mainly of MPs on the frontbench of the House of Commons, and the official Opposition who communicate through the “usual channels” and backbench MPs from different parties as well as a few independents. The current deadlock in Parliament and postponement of exiting the EU after the referendum, which has gone on for three years, has meant that the functioning of the fusion of powers between the executive and MPs has broken down and that should have been stated from the outset by government lawyers to the Supreme Court.

The fact that the Withdrawal document proposed by 27 EU countries has been defeated three times by the present Parliament raises profound questions for the government about UK MPs readiness to ever endorse the EU referendum decision. This political change in the conduct of government and accountability to Parliament following a referendum should have been the central argument raised by government lawyers during the hearings in the Supreme Court to explain the background to the decision of the government on prorogation. Nor did they bring before the Supreme Court the Government’s view, repeatedly expressed in Parliament and elsewhere, that Speaker Bercow, whose favourable views on the UK’s continued membership of the EU he had made abundantly clear, had called in question the most precious attribute of a Speaker – namely, their impartiality. Nor did the government in the Supreme Court question in depth the legality of the very recent but highly relevant changed procedure of the House of Commons allowing the ‘Benn’ Act to pass rapidly into law on 9th September 2019. Nor did they challenge the Cooper/Letwin Act passed earlier. The Supreme Court was never told in unequivocal terms that prorogation was a failsafe against this type of legislation affecting the ability of Her Majesty’s Government to fulfil the referendum result through Article 50. Now it may be argued these events coming after prorogation were not relevant to the case, but clever advocacy could have got around that objection.

The UK executive has had, over many centuries, powers in relation to Treaty negotiations to preserve the confidentiality of their negotiating position, to trade positions around difficult compromises and settle on an overall deal without the interference of Parliament in the negotiating process. But the Supreme Court is not like the US Supreme Court; it does not have the power to ‘strike down’ the ‘Benn’ Act. It is the last Act which is the law and our Supreme Court does not have the power to declare an Act of Parliament illegal. The US Supreme Court does have that power as does the French Constitutional Court. For this reason, it is fanciful talk to say we can ignore the ‘Benn’ Act. We have to circumvent it with another legal way of leaving the EU and what I propose is, I believe, the only way.

Even though under ‘Benn’s’ European Union (Withdrawal) (No 2) Act 2019 ordering the Prime Minister to write asking for an extension of Article 50 in the event of no agreement on 19th October, when it may be clear to the UK Government and even the 27 EU governments that there is no realistic chance of reaching an Agreement under Article 50, the UK has to send the letter. If the 27 EU countries were wise they would in this situation refuse any extension request, and accept the UK’s intention to leave the EU under the EEAA and cooperate with the UK on this new transitional exit that would be to the mutual advantage of all countries in the EEAA.

The above is an abridged version of a speech delivered to the Cambridge Union on 8th October 2019.

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