In a previous blog post, Michael-James Clifton (EFTA Court) argued that the UK has not notified its intention to leave the EEA as required. He has also written on the ‘EEA EFTA Separation Agreement’ agreed on 20^th December 2018 and its significant problems (here). In this article, he addresses an alternative draft treaty: the ‘EEA EFTA No Deal Citizens’ Rights Agreement’ published on 8^th February 2019. To date, the EEA EFTA No Deal Citizens’ Rights Agreement has been ‘agreed,’ but not ‘signed’.

This post contends that the draft EEA EFTA No Deal Citizens’ Rights Agreement is improperly structured in terms of its Contracting Parties. It highlights the revelations made by George Eustice MP regarding the UK government’s ‘conscious decision not to leave the EEA’ in March 2018. It also addresses the draft agreement’s provisions on dynamic incorporation and entry into force, and compares them to those in the EEA EFTA Separation Agreement. Additionally, the post places the draft agreement of 8^th February in the context of the so-called ‘Costa amendment’ on citizens’ rights proposed by Alberto Costa MP and approved by the House of Commons without a division on 27^th February 2019, the passing of the House of Commons’ motion, as amended, on 13^th March against a ‘no deal’ Brexit, as well as the passing of the House of Commons’ motion on 14^th March to seek an extension of the Article 50(3) TEU period until 30^th June 2019 if the draft withdrawal agreement is approved by 20^th March 2019.

The Contracting Parties

As the long title to the draft treaty, the Third recital, Article 1, and Article 2(e) of the EEA EFTA No Deal Citizens’ Rights Agreement make clear, the UK government takes the consequences which flow from Article 126 EEA beyond what that provision may bear as I have argued previously. Indeed, the UK government’s argument effectively runs that once the UK has left the EU, as per Article 126 EEA the ‘territories to which the [EU treaties are] applied’ will shrink to exclude the UK. By interpreting and relying on Article 126 EEA in this manner, the UK government deprives the specific withdrawal provision, Article 127 EEA, of any effect, contrary to the teleological method of interpretation of the EEA Agreement.

In a similar manner to the EEA EFTA Separation Agreement, the EEA EFTA No Deal Citizens’ Rights Agreement appears to apply a notion of implied and constructive withdrawal from the EEA Agreement based on the UK’s withdrawal from the EU:

‘CONSIDERING that on 29 March 2017 the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), following the outcome of a referendum held in the United Kingdom and its sovereign decision to leave the European Union (“Union”), notified its intention to withdraw from the Union and the European Atomic Energy Community (“Euratom”) in accordance with Article 50 of the Treaty on European Union, which applies to Euratom by virtue of Article 106a of the Treaty establishing the European Atomic Energy Community …

WISHING to set out necessary arrangements consequent upon the withdrawal of the United Kingdom from the Union and the EEA Agreement’.

It is interesting to note that the recitals and Article (2)(e) do not seek to imply that the UK has given notice of an intention to withdraw from the EEA Agreement, but appears to regard withdrawal from the separate treaty as automatic. Article (2)(e) of the EEA EFTA No Deal Citizens’ Rights Agreement defines ‘exit day’ itself as ‘the point in time at which the United Kingdom ceases to be a Member State of the Union and a Contracting Party to the EEA Agreement’. (emphasis added)

The constructive ambiguity of the UK’s position is rather well encapsulated in the ‘Frequently asked questions on EFTA, the EEA, EFTA membership and Brexit’ published by the EFTA Secretariat: –

‘When the UK leaves the EU, will it also withdraw from the EEA?

All parties – the EEA EFTA States, the EU27 and the UK Government – agree that the EEA Agreement will not apply to the UK after its withdrawal from the EU. This follows from the two-pillar structure of the EEA Agreement and Article 126, which states that the EEA Agreement applies to the territory of the EU and the three EEA EFTA States.’ (emphasis added)

‘Withdrawal’ from a treaty, and a treaty ‘not applying’ are by no means the same. Thus as with the alternative EEA EFTA Separation Agreement, the basic structure of the EEA EFTA No Deal Citizens’ Rights Agreement is inherently problematic: the UK purports to leave a mixed multilateral agreement with thirty other Contracting Parties, as well as the European Union, without written notification, and to resolve its immediate relationship by seeking to enter into a treaty with only three of the EEA’s Contracting Parties. To be clear, after Brexit, the EEA Agreement will enter into abeyance vis-à-vis the UK if it chooses not become an EFTA party to the Agreement because it would be subject to neither the EU or EFTA supervisory and judicial mechanisms (i.e. the European Commission, and ECJ, and the EFTA Surveillance Authority and EFTA Court).

Remarkably, George Eustice MP, who was until 28^th February Minister of State at Defra, wrote on 9^thMarch 2019:

‘[On 22^nd March 2018] our then ambassador to Norway explained to me that she had had a busy week. The Foreign Office had placed her on standby to hand-deliver a letter to the Norwegian government giving 12 months’ notice of our intention to leave the European Economic Area, as required under article 127 of that agreement…. The letter was never delivered and the UK Government took a conscious decision not to leave the EEA.’

He reiterated this on 12^th March 2019 in The Times stating, ‘The UK took a conscious decision not to give notice to leave the European Economic Area (EEA) under article 127 of that agreement. Our ambassador in Oslo was on standby ready to hand deliver the letter a year ago but was stood down at the end of March.’ He further reiterated this in the House of Commons on 13^th March 2019 (Hansard 13th March 2019 Volume 656 Column 427).

On the basis of the then Minister, George Eustice MP’s description of government policy that ‘the UK Government took a conscious decision not to leave the EEA’, one may wonder at how to interpret Article 2(e) of the EEA EFTA No Deal Citizens’ Rights Agreement. Article 2(e) would appear to be premised on the notion that the UK ‘ceases to be a Member State of the Union and a Contracting Party to the EEA Agreement’ on the same date. The wording of the provision is different; it refers to ‘the point in time at which the United Kingdom ceases to be a Member State of the Union and a Contracting Party to the EEA Agreement’ (emphasis added) i.e. at the point in time when the second of two events has occurred. It may be, therefore, that having made a conscious decision not to withdraw from the EEA Agreement, that the EEA EFTA No Deal Citizens’ Rights Agreement may not enter into force until sometime after the UK has withdrawn from the EU, if at all.

A dynamic agreement

Article 32 of the draft EEA EFTA No Deal Citizens’ Rights Agreement is entitled ‘Development of law and adaptations of acts incorporated into and in force under the EEA Agreement.’ The provision sets out the process for the dynamic incorporation of new secondary EEA legislation which either amends or replaces Regulations (EC) No 883/2004 (concerning the coordination of social security systems) and (EC) No 987/2009 (Regulation 883/2004’s Implementing Regulation) as well as Decisions and Recommendations of the Administrative Commission (all included in Parts I to III of the Annex to the Agreement).

While the scope of the dynamic alignment follows from the narrowness of this ‘no deal citizens’ rights’ treaty, which by no means covers all of the present citizens’ rights, it is remarkable that the UK accepts the concept at all in a ‘no deal’ scenario. This process of dynamic incorporation is similar to that found in the EEA Agreement itself, which brings across relevant secondary EU legislation into the EFTA pillar, and is presumably similar to that envisaged in the ‘common rulebook’ concept in the UK Government’s White Paper of July 2018, albeit at one further remove. In this ‘no deal’ situation however, unlike the EFTA States, the UK would have had no input whatsoever into the formulation of the new legislation.

The main process is set out in Article 32(1): –

‘Where an act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 has been incorporated into and is in force under the EEA Agreement, the Joint Committee established by Article 37 (“Joint Committee”) shall assess the effects of the act and shall consider whether it is appropriate to revise Part II of the Annex to this Agreement in order to align it to that act. To that end, the EEA EFTA States shall, as soon as possible after the process of incorporating such an act has been initiated, inform the United Kingdom.

If the Joint Committee does not take a decision to align Part II of the Annex to this Agreement to the act referred to, Part II of the Annex to this Agreement shall not be aligned to that act.’

Entry into force and (provisional) application

Perhaps the most striking contrast between the draft EEA EFTA No Deal Citizens’ Rights Agreement and the EEA EFTA Separation Agreement is their provisions on entry into force.

As I have written previously, Article 71 of the EEA EFTA Separation Agreement is extremely brittle and apt to induce problems (if the emergency provision of s.22 of the Constitutional Reform and Governance Act 2010 (‘CRAG’) is not used, it is now impossible for the EEA EFTA Separation Agreement to complete the ordinary process of being laid before both Houses of Parliament before 29^th March 2019. Indeed, it is still yet to be laid. A weekly list of treaties subject to CRAG – with the last date for objections – is available here). By contrast, Article 43 of the draft EEA EFTA No Deal Citizens’ Rights Agreement is better drafted and takes account of many of the difficulties I identified in its counterpart in the EEA EFTA Separation Agreement. Nevertheless, it merits close scrutiny as I shall discuss.

Firstly, ‘[the EEA EFTA No Deal Citizens’ Rights] Agreement is subject to approval in accordance with the respective legal requirements of the Parties. The instruments of approval shall be deposited with the [Government of Norway]’ (Article 43(1) of the draft EEA EFTA No Deal Citizens’ Rights Agreement). The proposed ratification of this treaty, particularly in the dualist countries of Iceland, Norway, and the UK, will take a certain time. Liechtenstein is a monist country, and so will presumably be in a position to deposit its ‘instrument of approval’ rather swiftly. In both draft treaties the government of Norway is the depositary (Article 42(1) EEA EFTA No Deal Citizens’ Rights Agreement, Article 70, second paragraph EEA EFTA Separation Agreement).

The first significant difference between the two draft treaties in this respect is that Article 43(5) of the draft EEA EFTA No Deal Citizens’ Rights Agreement provides for provisional application: –

‘Any Party may agree to provisionally apply this Agreement, pending entry into force of this Agreement for that Party, by notifying the Depositary. Such provisional application shall take effect on the later of:

(i) exit day, provided that the United Kingdom and at least one EEA EFTA State have deposited such notification; or

(ii) the date on which the United Kingdom and at least one EEA EFTA State have deposited their notifications.’

It is important to note that despite the possibility of the provisional application being set out, it is foreseen that there may be a gap in the protection of citizens’ rights between ‘exit day’ (Article 2(e) EEA EFTA No Deal Citizens’ Rights Agreement) and the provisional application of the agreement. Of course, being provisional ‘A Party may terminate the provisional application of this Agreement by written notification to the Depositary, which shall notify all other Parties. Such termination shall take effect on the first day of the second month following that notification.’ (Article 43 (6) of the EEA EFTA No Deal Citizens’ Rights Agreement)

Entry into force in this draft treaty is not fixed to a specific date unlike in the EEA EFTA Separation Agreement (30^th March 2019 – Article 71(2) of the EEA EFTA Separation Agreement). Indeed, the requirements set out in Article 71(2) to (4) of the EEA EFTA Separation Agreement are substantially more elaborate: –

‘2. This Agreement shall only enter into force in the event that there is no agreement covering citizens’ rights between the Union and the United Kingdom under Article 50 of the Treaty on European Union.

3. Subject to paragraph 2, this Agreement shall enter into force in relation to those Parties which have deposited their instruments of approval, on the later of:

(i) exit day; or

(ii) the date on which at least one EEA EFTA State and the United Kingdom have deposited their instruments of approval with the Depositary.

4. In relation to an EEA EFTA State depositing its instrument of approval after this Agreement has entered into force according to paragraph 3, the Agreement shall enter into force on the day following the deposit of its instrument.’

Discounting the possibility of provisional application, the draft treaty shall enter into force on the latter of two scenarios: the date on which the UK and at least one EEA EFTA State have deposited their ‘instruments of approval’; or ‘exit day’. The definition of ‘exit day’ being, as discussed above, either the date on which the UK, having signed this treaty, exits the EU, or, having exited the EU, the day on which the UK may withdraw from the EEA Agreement.

However, the draft treaty’s entry into force is made entirely contingent on an external factor. Even if the necessary instruments of approval have been deposited (Article 71(3)(ii) of the EEA EFTA No Deal Citizens’ Rights Agreement) and ‘exit day’ has occurred, the treaty shall only enter into force if ‘there is no agreement covering citizens’ rights between the Union and the United Kingdom under Article 50 of the Treaty on European Union’ (Article 71(2) of the EEA EFTA No Deal Citizens’ Rights Agreement). This is drafted sufficiently broadly to cover both a UK-EU withdrawal agreement, but also any ‘mini-agreements’ that potentially may be envisaged so long as one covers ‘citizens’ rights’.

At present, this is an unlikely scenario for several reasons on both the EU and UK sides. Firstly, as regards the EU, one of the EU’s priorities is citizens’ rights. However, this is tempered slightly by the EU’s desire for a single withdrawal agreement. Indeed, the European Commission’s spokeswoman Mina Andreeva told reporters on 28^th February: –

‘We will not negotiate mini-deals because negotiating such a mini-deal outside the withdrawal agreement would imply that the negotiations have failed.’

On the UK-side, the House of Commons in the last few weeks has passed both the Costa amendment on 27^th February, and on 13^th March voted to reject a ‘no deal’ Brexit (the latter vote is addressed further below). The Costa amendment requires the Prime Minister to seek a joint UK-EU commitment to adopt part two of the Withdrawal Agreement on citizens’ rights whatever the outcome of negotiations on other parts of the deal. The Costa amendment led the Secretary of State for Exiting the European Union, the Rt. Hon. Steve Barclay MP, to write to M. Michel Barnier on 4^th March stating: –

‘The Government’s position remains that the Withdrawal Agreement provides the best way of providing confidence to citizens. Nonetheless, given our shared commitment to protecting the rights of citizens in all scenarios, I would welcome your views on the proposal put forward by our Parliament to ring-fence citizens’ rights…’

Consequently, while the default position in both EU and UK law is that the UK for Brexit on 29^th March (on the basis of Article 50 TEU, and EU (Withdrawal) Act 2018 s.20(1) (although this can be amended in domestic law by a Minister of the Crown by regulations (EU (Withdrawal) Act 2018 s.20(4)), it would appear increasingly unlikely on the basis of the UK Parliament’s positive actions that Article 71(2) of the EEA EFTA Separation Agreement will be fulfilled. Therefore, it is increasingly unlikely that the EEA EFTA No Deal Citizens’ Rights Agreement may enter into force.

One further point must be mentioned. The combination of the ‘no deal’ with the EU requirement Article 71(2) of the EEA EFTA Separation Agreement, and the dynamic incorporation of secondary EEA law pursuant to Article 32 of the EEA EFTA No Deal Citizens’ Rights Agreement leads to a curious scenario: were the draft ever to enter into force citizens of the EEA/EFTA States would be in a more favourable legal position than EU citizens, yet the UK would be bound to dynamically incorporate the relevant secondary EEA acquis, which is, of course, brought over from EU law.

Ratification in the UK

I have previously set out the process of ratification, the Constitutional Reform and Governance Act 2010, and Parliamentary procedure in-depth here. On the basis of s.20(9) CRAG, the EEA EFTA No Deal Citizens’ Rights 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. 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. Given the inherent acceptance of temporal gaps in the specified ‘citizens’ rights’ in Articles 2(e), and 43(3) and (5) of the EEA EFTA No Deal Citizens’ Rights Agreement, it is difficult to envisage how the ‘exceptional cases’ requirement in s.22 CRAG may be fulfilled. This is despite the fact that there is now insufficient parliamentary time for the draft treaty to go through the standard 21 sitting-day period before 29^th March 2019 (presupposing that there is no Article 50 TEU extension).

It is now probable that there will be an extension to the Article 50 TEU period after the passing of the motion in the House of Commons on 14^th March 2019 to seek an extension of the Article 50(3) TEU period until 30^th June 2019 if the draft withdrawal agreement is approved by 20^th March 2019, and noting that if the ‘negotiated withdrawal agreement and the framework for the future relationship’ is not approved, the length of the extension will depend on its purpose. This would provide additional time to fulfil the 21 sitting-day period required by s.20(9) CRAG. Notably, on the basis of the motion proposed by the Prime Minister it appears that she intends to bring the draft withdrawal agreement before the House of Commons for a third time, going around the procedural point in Erskine May highlighted by Sky News on 14^th March that ‘A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session… Whether the second motion is substantively the same as the first is finally a matter for the judgment of the Chair.’ (Malcolm Jack (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24^th edition 2011, Lexis Nexis, London, p397: ‘Matters already decided during the same session’)

In light of the approval of the motion, as amended, in the House of Commons on 13^th March ‘That this House rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship’ it may be anticipated that this draft treaty will not be signed. Nevertheless, ‘should the UK exit the EU without a deal in place, then [the EEA EFTA No Deal Citizens’ Rights Agreement] would be signed by exit day.’ (Treaty Enquiry Service, Legal Directorate, Foreign and Commonwealth Office’s correspondence with the author).

Conclusions

The UK government’s policy of creative ambiguity towards withdrawal from the EEA Agreement was demonstrated to be even more elaborate by the revelations of George Eustice MP on 9^th March 2019. Irrespective of that, the EEA EFTA No Deal Citizens’ Rights Agreement, as with its alternative, the EEA EFTA Separation Agreement, has significant, possibly insurmountable legal flaws, and may not ever enter into force.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image by wp paarz, (CC BY-SA 2.0).

Michael-James Clifton is Chef de Cabinet, Chambers of Judge Bernd Hammermann, EFTA Court. All views expressed are entirely personal. This blog post is based on part of the author’s forthcoming article. 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.