Lord Owen’s speech on 13 December 2018 in the Debate on the current constitutional challenges within the UK and the case for the establishment of a UK-wide Constitutional Convention to address issues of democratic accountability and devolution, particularly in England.
View the speech here: Constitutional Challenges
Read the text here: HL13.12.18
House of Lords Debate to take note of the Withdrawal Agreement on 5 December 2018 – view Lord Owen’s speech here: Lord Owen speaks in Lords Debate
Original of Lord Owen’s Letter: LettertoallMPs
The letter is supplemented by an Explanatory Note which can be viewed here: Explanatory note
“Last week in the Sunday TimesTheresa May wrote a letter to the country and Tony Blair wrote to the EU.
Your votes on 11 December are your choice and yours alone. This is about what the Government and the UK should do if the House of Commons decides not to endorse the Withdrawal Agreement [WA].
You know well that after losing a major vote the House will expect a considered response from the Government. It will be vital that world financial markets know immediately how the UK intends to act. It will be damaging to wait even to early next day. That the Government should allow speculators and currency markets to dictate a repeat vote on the WA in the weeks following is disreputable and dangerous.
The Prime Minister has repeatedly said that the EU will not renegotiate the WA. Everyone in the EU says exactly the same. Nick Boles and it appears Michael Gove advocate you should first vote for the Withdrawal Agreement and then negotiate ‘Norway Plus’ to apply after 31 December 2020.
This proposal is different. It only concerns the situation if the Withdrawal Agreement has been rejected and is about continuing as a member of the EEA after 20 March 2019. This allows an independent fisheries policy to start immediately and ensures that we have, if we judge the time to be correct, a clear legal exit procedure in which the EU has no involvement.
The WA having been rejected the UK must seize the initiative and stop being a supplicant under Article 50 while paying strictly determined exit costs. We can thereby avert the other outcome of leaving without a deal in less than four months. It offers clarity and certainty.
Suggested Prime Minister’s Statement immediately after the WA vote is lost.
“As a consequence of tonight’s votes I am sending letters immediately to all other 31 parties to the European Economic Area Agreement [EEAA]: the EU itself, its 27 member states and the 3 Efta states.
“The letters will state our intention to continue in the European Economic Area as a non-EU member from n the end of March 2018. We intend to do this because we signed the EEA Agreement as the UK in 1992 and we have not as the UK given the twelve months notice in writing required to withdraw from the Agreement.
If Efta or the EU countries challenge our entitlement then we will take our case to arbitration under international law using the Permanent Court of Arbitration [PCA] which was endorsed by all EU members in the Withdrawal Agreement. I am writing to the Secretary-General of the PCA.
I hope this action will unite many different viewpoints in Parliament, it has the merit of being very simple:
We, like the three other non-EU members of the EEA, would not be starting out as part of the EU Customs Union, though we could pursue this. We could pursue our own EU-UK FTA on the lines of Canada +++ as President Tusk at one time proposed and we will immediately start with other FTA negotiations. There is no necessity for us to join Efta. We would not be fixing any time limit as to how long we stay in EEA. Like the other three non-EU countries, we would continue to be bound, as are all Parties to the EEAA, to give one year’s notice of leaving. We would not ask anything more form the EU than we are entitled to under the EEAA.
That will be a good achievement. Norway has significant rule influence for a country its size. The 3 non-EU states have achieved numerous rule-derogations and amendments. Liechtenstein even has strict immigration controls. The ECJ does not hold sway, and there are no mandatory contributions to the EU budget (only to an EEA-Efta programme to reduce economic and social disparities, likely to be around £1.5 billion per year).
We would also be in a position to agree with the EU before 29 March 2019 many issues on which genuine agreements were made during the negotiations over the WA and where appropriate we would be willing to pay for these.
Continuing in the EEA Agreement as a non-EU member requires no more than minor consequential legislative changes similar to those needed by Austria, Finland and Sweden in the opposite direction on leaving Efta to join the EU in 1995. Article 126, for instance, was not amended until 2004. In Ireland the border would become an EEA/EU land border like Norway/Sweden, but with no infrastructure rather than partial infrastructure.
Meanwhile we will urgently improve our transport links with the continent and keep in place the legislation to leave the EU on 29 March, already agreed by both Houses of Parliament though if we stay in the EEA we would have to adjust he EU Withdrawal Act 2018 a little.”
David Owen
The letter is supplemented by an Explanatory Note which can be viewed here: Explanatorynote
Published in Conservative Home, 09 October 2018
Theresa May “has been badly advised and seems unaware” of “a complete error of a very serious kind”, as Number Ten tries to pretend we are not staying in the European Economic Area during her Brexit plan… “We are in the EEA now, we are going to be in it for the 21 months, and it would make a reasonable pathway for the further 15 months, and we’re out of it all before a June 2022 general election.”
Elsewhere in the interview Lord Owen comments:
“A staged Brexit should be built into the Withdrawal Agreement, which is a very substantial document already, and deals with almost all the immediate issues that we would otherwise face coming out without an agreement. ….part of that agreement has a 21-month pause…(in that period) we are technically assumed to be still members of the EU, although we are not, but we are given a very good standstill period which goes beyond EEA, it deals with banks and it deals with almost everything.
“So I think we should keep to the Withdrawal Agreement, we should negotiate everything we can within the framework of the Withdrawal Agreement, and we should try to, in the Withdrawal Agreement, timetable everything on the basis of achieving Canada plus plus plus.
“I do not accept – and nor should the UK Government – that Canada plus plus will take eight, ten years, six years, and I think it’s a farce to contemplate such a timescale.”
Full text of a letter from lord Owen to the Prime Minister Theresa May, 17 September 2018. Also available here: DOtoPM17.9.18
Lord Owen’s letter was triggered by a letter from the PM 6 September 2018 which is here: PMtoDO6.9.18
Dear Prime Minister
I have long been deeply puzzled why in our correspondence since 2 November 2106 you appeared to have closed your mind to the option of using our continued full membership of the EEA, including full participation in its governance, during the proposed 21 month implementation period starting at the end of March 2019. You know well from our correspondence that I have never suggested permanent membership of the EEA Agreement. All I have ever asked is that you do not ignore the EEA option and end up presenting to Parliament a false choice between your bespoke agreement and coming out without agreement under the WTO rules with all the serious temporary difficulties that that involves.
Having read your letter this weekend I now realise your firmly held position has been based on a deeply mistaken belief about the content of the EEA Agreement. In para 8 of your letter to me there is a very serious and alarming error. It reads:
“I should also add that the EEA would not provide a solution for the Irish border issue. It would deal with industrial goods but not checks on sanitary and phytosanitary standards for agrifood, nor with customs.”
The facts are that the very first Annex of the EEA Agreement is devoted to these issues of sanitary and phytosanitary standards [SPS] for agrifood. The Annex is for the most part a 269 page bibliography of the relevant legislative Acts concerning SPS matters which are contained in the EEA acquis. That is a lot of regulation. Yes, of course, you are right – SPS issues are central to the Irish Border Issues – they do require much more intensive checking efforts than customs and it is at the border at which agrifood movements account for a relatively high proportion of total movements. I would never have suggested to you using the EEA for the 21 month period and maybe a little more unless the EEA had covered SPS.
I cannot understand how you have come to be misled over this long period on this SPS issue. I am sure it was not deliberate but it may reflect a deeper problem you face in that you are not being advised by people of long experience of EU matters nor of negotiating with the EU. The lack of due diligence is quite extraordinary and may explain why Irish Border Issues have been allowed to appear more intractable than they are. I notice even last week the Taoiseach was talking about the EEA more positively than before. I have no doubt that during 21 months working together the UK as a non-EU member of the EEA and the Irish Government as a EU member we can come to satisfactory arrangements that will lead into the wording of a Canada-like EU/UK trade agreement.
Another reason for being a full member of the EEA during this period is that we would be operating under the EFTA Court not the ECJ and when we leave the EEA Agreement we could, I am sure, ‘dock alongside the EFTA Court’, wording which the EU has used when discussing the Swiss aversion to coming under the ECJ; an aversion which I believe is shared by the British people.
In your Future Relationship paper which you set out at Chequers in para 35, manufactured goods and agrifoods are put on the same level. A common-rule book is required for each (See your sentence “as for manufactured goods…”) in order to remove additional regulatory checks at the border. Annex 1, to which I have already referred and which deals with SPS issues, is, in effect, that common-rule book for agri-food, and is already written. It is readily available on the following link:
(http://www.efta.int/media/documents/legal-texts/eea/the-eea- agreement/Annexes%20to%20the%20Agreement/annex1.pdf). This can serve until such time as a new agreement can be reached. Hence there is no need for an Irish backstop for these regulatory measures – only customs needs to be sorted, which is much easier and is largely about a modest amount of money, not public health.
For all of these reasons I urge you to take one last opportunity preferably bringing in advisers who know about these issues in detail and would never have allowed you to be under such an important misapprehension about the EEA Agreement, and be ready to give Parliament a proper choice, not a false one based on fear. That has already been tried in the referendum and it failed. It will do so again. The people of this country do not like being bullied.
Yours sincerely
DAVID OWEN
Download a copy of Lord Owen’s letter here: DOtoPM17.9.18
Download the letter from the Prime Minister triggering his response here: PMtoDO6.9.18
Further to revealing on 30 July his correspondence with the Prime Minister on the merits of the EEA, Lord Owen adds the following:
“In addition to the exchange of correspondence with the Prime Minister, I have now added correspondence with the then Secretary of State David Davis over what international or British legal opinion the Department commissioned over the EEAA.
“In my view the reluctance to give chapter and verse about any legal opinion and their right of non disclosure using the legal professional privilege under the FOI Act is an indication, along with other imprecise and often inaccurate statements, that no such legal opinion on the important issues surrounding our UK signature to the the EEA Agreement was ever sought. This should have been done in 2015 after David Cameron won the General Election, before his pledge to hold a referendum.
“The really important document, however, is the legal opinion (attached) signed by three senior and well regarded people with expertise in this whole area. This opinion does give chapter and verse as to why the UK could remain in the EEA Agreement for a transition period of around two years as a non-EU Contracting Party from 31 March 2019 when under Article 50 we will be leaving the EU.
“During this time we will be able to negotiate a trade agreement with the EU along the lines of the Canadian CETA which was only recently negotiated by the EU with a considerable input from the UK. The issues are therefore mostly known and can be dealt with quickly.
“This is a far better option than the Chequers agreement which has been substantively rejected already by the EU in important areas for the UK. It is also a better option than leaving without any agreement. No deal is a fallback when all else fails.
“This option of transitioning out of the EU through the EFTA pillar of the EEA is a serious one, as this legal opinion makes clear.
“ONLY if the EU blocks this credible route and we fail under an appeal to international treaty dispute procedures should we contemplate leaving without any agreement.”
View the correspondence with David Davis here: DDavisFOI
Download the legal opinion on the EEA Agreement here: BfB EEALegal Briefing 21 August 2018
Read Lord Owen’s correspondence with the PM on EEA here: http://www.lorddavidowen.co.uk/lord-owen-reveals-correspondence-with-the-prime-minister-on-merits-of-the-eea-for-transition-period/
Lord Owen reveals correspondence with the Prime Minister on merits of the EEA for transition period.
Lord Owen, writing in TheSunday Times, 05 August 2018.
Read the full article here: SundayTimes 5Aug18
“Why should we be forced to choose between a disguised sell-out and a fear-laden pullout from the European Union? Neither is in the national interest. Neither is likely to have the support of a sufficient number of MPs….
“Politicians on all sides of the argument should stop frightening people by pretending the only choices for leaving the EU next March are a bespoke option or a World Trade Organisation option.
“There is an alternative EEA option that can win the support of a majority of MPs. Namely to stay in the EEA single market as a non-EU country and in the Efta pillar for a limited period….
“Those who doubt that national sovereignty exists for the national parliaments of the three countries in the Efta pillar, and insist that they are in effect under the thumb of the European Commission, should study the recent clash between Norway and the EU over snow-crab fishing rights and recognise why the House of Commons would be sovereign…”
Monday 30 July 2018
Lord Owen comments:
“I have been trying to persuade the Prime Minister since 23 November 2016 of the merits of preparing as a reserve if the EU destroy her bespoke option, for the UK staying in the EEA as a non-EU Contracting Party after we exit the EU on 31 March 2019 until at the earliest December 31st 2020 and at the latest 31 March 2021 and all this being specified in the Withdrawal Agreement.
“The case for clarifying the legal position over the EEA in the next few weeks is to make it clear internationally that the U.K. is not boxed in between only a bespoke deal and exiting under WTO rules: but that there is a third option open to the U.K. by right to continue EEAA membership. This would only be invoked in circumstances in which the bespoke Chequers agreement is not acceptable to the EU.
“The Prime Minister might be tempted to argue this can all wait until September/October and the EU/UK negotiations are complete. I believe that such a delay would be a grave mistake, for we may need some months to establish our UK right and will not have that time if we delay the process. It is hard to estimate how long the Vienna Convention procedures would take but it could possibly last 3-5 months starting September/October. Neither the U.K. nor the EU can wait this time.
“First, the U.K. is obliged under the Vienna Convention dispute procedures on international treaties to ask the 27 EU member states all individual signatories to the EEAA and the three non-EU individual signatories to agree to us exercising this right and approving the small number of wording changes necessary for inclusion in the Withdrawal Agreement. We should do this now.
“Second, were there to be any principled objections from the signatories to the minor changes to the EEAA we were requesting, the U.K. would then need to invoke international dispute resolution under the Vienna Convention which is an international legal process not a regional court like the ECJ and to do so quickly.”
Read Lord Owen’s correspondence with the Prime Minister: CorrespondencePMonEEA
Read his interview with The Daily Telegraph here: We’ve got to sort out Brexit, and fast. This is very dangerous
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