European Economic Area: UK Membership

Debate between Matthew Pennycook and David Jones

Monday 6th November 2017 Commons Chamber

[Matthew Pennycook]

The Labour party’s position is very clear: we want to seek a deal that retains the benefits of the single market and the customs union. We think we should be a member of the single market for the transitional period. Whether the EEA option is the only viable one for doing so during the transition is a question for another day. The wording of the motion on article 127 and continued membership of the EEA is very specific.

In short, the situation is entirely unclear. In the opinion of the House of Commons Library, the majority legal view is that under the present wording of the EEA agreement, it is impossible to be a party to that agreement without being a member of the EU or EFTA. That view has been put forward by a number of experts, including, most prominently, Professor Baudenbacher, the President of the EFTA court. He has argued that there is no scope within the EEA agreement for a third type of a contracting party that is neither an EU nor an EFTA member. The argument has not yet been tested in court.

[Mr David Jones]

Will the hon. Gentleman tell us whether the Labour party agrees with Professor Baudenbacher?

[Matthew Pennycook]

As I have said, this legal opinion has not been tested. Interpretations differ, but I would say that the majority legal view supports Professor Baudenbacher’s assertion that there is currently no way to become a third type of contracting party to the agreement.

The argument has not been tested in court, as I have said. As the House will know, in February 2017 the High Court was asked whether the Government required the explicit consent of Parliament to enable them to leave the EEA, but the application was rejected on the grounds that it was premature since the Government had not then made a final decision on their EEA withdrawal mechanism. As things stand, in the absence of greater clarity, the door is clearly open for future legal challenges against the Government on this issue.

Greater clarity is required, and I have no doubt that the Government are aware of that. I assume their position on this matter is under review. That position has certainly evolved over time. In a response in December 2016 to a written question submitted by my hon. Friend the Member for Nottingham East (Mr Leslie), the Government were clearly interpreting subsection 1 of article 126 of the agreement to mean that the UK is a member of the EEA only in its capacity as an EU member state. As such, we will automatically exit and secede from the agreement when we leave the EU.

However, the Government since appear to have shifted away from that position. According to reports of court proceedings taken from a judicial review application to the divisional court in February, the Government accepted that article 126 did not

“give rise to termination of the EEA Agreement ipso jure [in law]”.

More recently, in responding to a question posed by my hon. Friend the Member for Aberavon on 7 September, the Secretary of State argued that although article 127 does not need to be triggered for the agreement to cease to have effect,

“we are looking at it just to make sure, for clarity purposes, that we meet its requirements.”—[Official Report, 7 September 2017; Vol. 628, c. 285.]

Is the Minister able to tell the House today what progress has been made in that regard? The Government’s latest position appears to be that even if our EU exit does not automatically terminate the EEA agreement in law, any continued signature to the agreement would not equate to functional single market membership.

As my hon. Friend the Member for Lewisham East said in her powerful speech, whatever one’s opinion about whether the UK should be in the EEA, out of it, in it for a few years or in it for decades, it is crucial that we have greater clarity on this matter. I hope that in his summing up, the Minister will shed more light on the Government’s position before we come to the Committee stage of the European Union (Withdrawal) Bill.