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Brexit: Legal battle over UK’s single market membership

The government is facing a legal battle over whether the UK stays inside the single market after it has left the EU, the BBC has learned.

Lawyers say uncertainty over the UK’s European Economic Area membership means ministers could be stopped from taking Britain out of the single market.

They will argue the UK will not leave the EEA automatically when it leaves the EU and Parliament should decide.

But the government said EEA membership ends when the UK leaves the EU.

The single market allows the tariff-free movement of goods, services, money and people within the EU. The EEA, set up in the 1990s, extends those benefits to some non-EU members like Norway, Iceland and Liechtenstein.

Non-EU members are outside the Common Agricultural Policy and customs union, but get barrier free trade with the single market in return for paying into some EU budgets and accepting the free movement of workers.

If the courts back the legal challenge and give Parliament the final say over EEA membership, then MPs could vote to ensure that Britain stays in the single market until a long-term trading relationship with the EU has been agreed.

‘Not automatic’

The pro-single market think tank British Influence is writing to Brexit Secretary David Davis to inform him that it will seek a formal judicial review of the government’s position.

The group warned that if the government did not get a clear legal opinion it could potentially end up acting outside the law.

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All EU member states are in the European Economic Area and it had been assumed that when Britain leaves the EU it would automatically leave the EEA as well.

But some lawyers argue that leaving the EEA would not be automatic and would happen only if Britain formally withdraws by triggering Article 127 of the EEA agreement.

The legal question is focused on whether the UK is a member of the EEA in its own right or because it is a member of the EU.

Brexit Secretary David DavisImage copyrightGETTY IMAGES
Image captionA pro-single market think tank is writing to Brexit Secretary David Davis to tell him it will seek a judicial review of the government’s position

Professor George Yarrow, chairman of the Regulatory Policy Institute and emeritus professor at Hertford College, Oxford, said: “There is no provision in the EEA Agreement for UK membership to lapse if the UK withdraws from the EU.

“The only exit mechanism specified is Article 127, which would need to be triggered.”

Jolyon Maugham QC, of Devereux chambers, said: “My own view is that you do not automatically leave the EEA. Given Article 127 provides an express mechanism for withdrawal, it implicitly excludes other implied mechanisms for withdrawal such as ceasing to be a member of the EU.”

In other Brexit developments:

  • Campaigners are urging the government not to “cherry pick” different parts of the economy for special trade agreements with the EU after Brexit
  • Polish Prime Minister Beata Szydlo, who is due to meet Theresa May in Downing Street later, wrote in the Daily Telegraph that she would be a constructive partner in Brexit negotiations but warned there would need to be compromise in the talks between the UK and EU
  • Eighty-one MPs and peers have signed a letter to European Council President Donald Tusk calling for a deal to protect the rights of both Britons living in other EU countries and EU nationals in the UK

Small majority

At the the very least this latest challenge would mean a lengthy legal process – potentially via the European Court of Justice – that could delay the government’s Article 50 negotiations with the EU.

If the courts say Article 127 does need to be triggered, there is the question of whether an act of Parliament would be needed for it to be authorised.

The government is already fighting in the courts to stop MPs getting the final say over triggering the Article 50 Brexit negotiations.

If MPs do get to decide on Article 127, they could potentially overcome the government’s small majority and keep Britain inside the single market after Brexit.

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This would infuriate Brexiteers, but pro-EU campaigners say MPs would feel able to do this because people voted in the referendum to leave the EU and not the single market.

‘New wheeze’

A government spokesman said: “As the UK is party to the EEA Agreement only in its capacity as an EU Member State, once we leave the European Union we will automatically cease to be a member of the EEA.”

“The referendum result will be respected and we intend to invoke Article 50 no later than the end of March next year,” he added.

Jonathan Lis, deputy director for British Influence, said: “There is a strong chance that the UK will be acting unlawfully by taking us out of the EEA with Brexit. We consider that… they have an obligation to seek urgent clarification in the courts. So we are going to be petitioning for a judicial review.”

Conservative MP and Brexiteer Dominic Raab said: “Rather than coming up with new legal wheezes to try and frustrate the will of the people, these lawyers should be working with us to make a success of Brexit.

“The public have spoken; we should respect the result and get on with it, not try to find new hurdles that undermine the democratic process.”


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