Could the EEA be the UK’s unique bargaining chip?
- December 6, 2016
- Posted by: Tyler Hanley
- Category: europe watch
ISSUE OF THE DAY
As we watch the course of European political reality pan out, it is becoming increasingly clear that the UK faces an array of zombie governments. After failing to gain support for his reforms Matteo Renzi is set to submit his resignation as Italian Prime Minister; Austria has narrowly rejected the far-right populist Norbert Hofer; and all the while, European leaders are enduring sleepless nights worrying about the very real threat of a Marine Le Pen victory in France next year.
Why isn’t the UK government taking its chance in negotiations not only for the best possible deal for Britain, but one that might also provide a useful solution for the EU?
The UK will have a golden opportunity if the courts rule that we are a member of the EEA in our own right, enhancing our negotiating position with the EU. The future of UK/EU trade will be absolutely central to talks and if it is clear that the EU cannot force us out of the single market, then the UK government will find itself in a stronger negotiating position come the triggering of Article 50. Crucially, the EU would not be able to use access to the single market as a bargaining chip.
There is a strong legal case that EEA membership is distinct from EU membership. Article 127—the EEA’s answer to Article 50—declares that “each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing,” which suggests a withdrawal procedure separate from Article 50. Equally compelling is the EEA Act 1993, a UK Act of Parliament enshrining UK membership of the EEA in domestic law. As has long been established, what parliament has enacted, only parliament can repeal.
If the court upholds that membership of the EEA requires a separate withdrawal process, then the UK will have more than a leg to stand on when negotiating with the EU. The pendulum swings from the EU to the UK as we find that the EU cannot forcibly eject us from the single market.
This is potentially great news for both the Government and Brexit supporters. Not only will the UK have all the cards in negotiations, but because of the ’emergency brake’ option which EEA members have on free movement, the Government will also be able to live up to the red lines that Leave supporters wanted.
This is not about halting Brexit. Securing the best possible future for the whole country will only be brought about if legal clarity on the UK’s position within the single market is pursued. If the courts rule that we are members of the single market in our own right, then it will be about as ‘having your cake and eating it’ as you could hope for.