The UK is currently a member of the European Economic Area and is likely to be able to continue membership if it wishes. Its treaty rights under the EEA afford the UK a considerable degree of control over the post-Brexit outcome. Continued membership can be viewed as a ‘interim measure’ that would, in one step, meet most of the Leave agenda, whilst allowing time for reflection on longer-term issues.
As the Brexit negotiations begin to focus on future trading and customs arrangements these
notes reprise the principal theme of Brexit and the Single Market2 (published in July 2016 in
the wake of the referendum) and add comments on some aspects of the subsequent discourse.
Very briefly, my conclusion back then was that the most efficacious way to respond to the
Leave vote on 23 June 2016 would be to seek a Brexit based on the UK’s continued
membership of the European Economic Area (EEA) in the period immediately following
withdrawal from the Treaty of Lisbon. There were three main reasons for taking this view.
This essay is a developed version of the Zeeman Lecture given at the Regulatory Policy Institute’s Annual Conference on 26 September 2017 at Lady Margaret Hall, Oxford University. The motivation for the Lecture was that, in the period since the Brexit Referendum on 23 June 2016, politicians, interest groups, journalists and commentators have fed the public a steady diet of alternative facts and false or misleading propositions. The Lecture focused on three of a much wider set of such assertions and propositions. All are relevant to the future conduct of regulatory policy, though each in different ways. Each is associated with a cognitive style that I have called convenient, selective myopia.
Our aim in this paper is to explain and comment on some of the principal features and implications of the European Economic Area Agreement (EEAA). A number of misunderstandings about the content and operation of the Agreement appear to have made their way into public discourse in the UK. We are concerned about the distorting effect of these, not only on public perceptions, but also potentially on the Government’s position. Our hope is that this paper may help inform a more considered debate about the UK’s Brexit destination.
In discourse following the UK referendum on 23 June 2016 significant attention has been paid
to the question What does Brexit mean? The answer seems to be straightforward: it means
UK exit from the EU, which requires UK withdrawal from the EU Treaty.
A much more important and challenging question is What next? Central to evaluation of the
options available is another question, a question about the meaning of words: What does the
expression free movement of persons mean? Put more specifically: What conditions need to
be satisfied in order to be able to say that free movement of persons has been established?
The UK is currently a Contracting Party to the European Economic Area (EEA) Agreement, and exit from the EU does not necessarily imply exit from the Single Market (i.e. withdrawal from the Agreement). Exit from the EEA would require that extra steps be taken, either unilaterally by the UK or by the other Contracting Parties to the Agreement.
There is no explicit provision in the Agreement for the UK to cease to be a Contracting Party other than by unilateral, voluntary withdrawal, which requires simply the giving of twelve months’ notice in writing (Article 127). A commonly held assumption that only EU and EFTA members can be Parties to the EEA Agreement – and hence that the UK has to be a member of one or other of these two organisations to be in the Single Market – is not well grounded, although UK consideration of an application for EFTA membership is an option well worth exploring in its own right.