Must we trigger Article 127 if we want to leave the single market?

The new Brexit legal challenge

November 29, 2016
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The dark and dusty corners of the internet aren't wholly taken over by climate change deniers and crush videos. Constitutional lawyers have one too. And of late it's been consumed with the Norwegian option.

In case you've forgotten—and I rather hope you have—Norway is part of the European Economic Area. It's a kind of single market hinterland where the "four freedoms" apply—including free movement of persons (and you still make contributions to the budget, and you have less influence over the laws that apply to you) but where you get to strike your own trade deals and you're outside the Common Agricultural Policy and... but anyway.

And constitutional lawyers have been talking about the Norway option because Professor George Yarrow, Emeritus Fellow of Hertford College, Oxford, published an intriguing paper suggesting that by quitting the EU we could end up like, well, Norway.

And yesterday morning a brave archaeologist of the internet, the BBC's Diplomatic Editor James Landale, took it from that corner and thrust it, blinking, into the light.

You'll recall that the mechanism by which we leave the EU is Article 50 of the Lisbon Treaty. But, or so the argument runs, the EEA Agreement has its own mechanism for leaving the EEA: Article 127. And, because it has its own mechanism for exiting, to leave the single market and the EEA we'd also have to trigger Article 127.

The government disagrees, of course. To agree would be to admit it hasn't properly surveyed the legal terrain and doesn't entirely know where it's going. But, for what little it's worth, I think Yarrow's analysis on this central point is right.

In one sense all of this is mere formality. If the government can quit the EU it can also quit the EEA. But there is another sense in which it is quite profoundly important. The question whether we want to remain members of the European Economic Area—or the single market—was not put in the referendum. Indeed, a number of prominent "Leave" campaigners insisted that leaving the EU did not mean leaving the single market. And, although it is not an argument I find particularly compelling, many read the Conservative's 2015 Manifesto as promising continued membership of the single market.

Lawyers are fond of telling you that, from their perspective, the referendum was mere opinion poll. Politicians are wont to reply, and fairly, that they will act on it anyway because it was a very large opinion poll indeed and folks expected it would be acted on. But there was no opinion poll at all on leaving the single market. And the politician who today tells you otherwise is the most modern politician of all: the one who just makes it up.

So where do we go from here?

British Influence, the cross-party pro-EU pressure group, says it will bring High Court proceedings to seek to establish whether Yarrow is right. And those proceedings could, conceivably, result in a reference to the Court of Justice of the European Union on the question. And there is a world in which the government needs an Act of Parliament to trigger Article 50. And then another Act of Parliament to trigger Article 127.

I doubt we'll get this far, not in those court proceedings anyway. They seem to me to be premature. The point's an interesting and important one but we don't yet know whether government intends to trigger Article 127. And we don't yet know whether it plans to do so by way of Act of Parliament. And so I think the High Court will say, "not yet."

But, regardless, the point is now out in the open. And the lack of a political mandate for leaving the single market might embolden a hitherto rather rudderless Parliament. "Article 127 shall not be triggered without Parliamentary authority": that's what Parliament should say to the government as the price of an Article 50 Act. "You have no mandate for it."

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On the 17th of November, Prospect launched Brexit Britain: the trade challenge. A publication designed to act as a guide for parliamentarians, officials and businesses with a stake in the UK’s changing relationship with the world following Brexit. To see the complete contents of the report please click here.

For speaker and partnership opportunities, please contact david.tl@prospect-magazine.co.uk.You can also receive the full “Brexit Britain: the trade challenge” report as a fully designed PDF document. To do so, simply enter your email below. You’ll receive your copy completely free—within minutes.

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