Clause 25 - EEA agreement and EEA state
Legislative and Regulatory Reform Bill
1:45 pm
David Heath (Shadow Secretary of State for Constitutional Affairs & Shadow Leader of the House, Law Officers (Constitutional Affairs); Somerton and Frome, Liberal Democrat)
I want to make a rather pedantic point, unfortunately, which is also rather complicated, about whether the European economic area agreement, or any modifications to it, are Community treaties. We know that the EEA agreement was entered into by member states of the European Union, the European Coal and Steel Community and the European Free Trade Association, but unlike sovereign states there is no legal persona that is the European Union. Had the referendum gone ahead and the constitution been proceeded with, the EU would be a legal personality; but it is not. Therefore, we have an agreement of member states.
Under the provision, with which I have no basic quarrel other than this technically that I am looking into, there is a definition of the EEA agreement:
“the European Economic Area signed at Oporto on 2nd May 1992, together with the Protocol adjusting that Agreement signed at Brussels—
fair enough—
“as from time to time modified or supplemented by or under the Community Treaties.”
The difficulty is that amendments to that are not Community treaties per se, in that they are entered into by the European Union as such, because it cannot do so—only member states can do that—and amendments to the EEA are, by definition in British law, not defined as Community treaties under section 1(2) of the European Communities Act 1972. How do I know that? I have in my hand the European Communities (Definition of Treaties) (Agreement on Enlargement of the European Economic Area) Order 2004, which was necessary to allow the participation of the Czech Republic and the republics of Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and the Slovak Republic within the EEA at a time when they were not member states of the European Union.
The second provision of the 2004 order is:
“The treaty specified in the Schedule to this Order is to be regarded as a Community Treaty.”
In other words, it was not, but the order put to Parliament was to allow it to be regarded as such. That is a rather technical point, but there is a circular definition of Community treaties that is perhaps to be avoided. I do not expect the Minister to give me a chapter-and-verse response without notice, but I ask him to consider the matter and ensure that he is satisfied that the legal definitions are in order and we do not have a circular argument about what comprises a Community treaty. I think that the Minister gets the point that I am trying to make and may, indeed, have an answer.