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

The new Brexit legal challenge

by Jolyon Maugham / November 29, 2016 / Leave a comment

A cross-party pro-EU pressure group says it will bring High Court proceedings on the matter ©Sjiong, Wikimedia Commons

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…

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Comments

Richard B.
December 3, 2016 at 09:40
Personally I think that we made a bad decision in the referendum but I think we have to lay to rest the notion that voting to leave the EU did not give the government a mandate to leave the Single Market. It was made clear by the then Prime Minister and his Chancellor (and if you can't trust them to tell the truth who can you trust!!!!) on several occasions that a vote to leave the EU meant a vote to leave the Single Market as well. For politicians to now say that we did not vote to leave the Single Market is simply another ploy to try to delay or reverse the decision made on 23 June and still maintain that they respect the will of the people expressed in the referendum is hypocritical in the extreme. The question of Article 127 is a similar case to Article 50, a matter of dotting the legalistic 'Is'. The public is getting annoyed with what it sees as elitist attempts to frustrate the will of the people. There are renewed calls for a second referendum on the terms of Brexit and some wag has suggested a third referendum so it will be the best out of three!!!
1. Luke A
  December 7, 2016 at 18:34
  I understand your argument but I respectfully disagree. Although those campaigning for remaining made the possibility of Brexit forcing us to leave the single market clear, people did not vote to leave the EU on the basis of what Remain campaigners said (or at least not purely). On the Leave side, I believe there was something of a split on the matter. It seems to me all a little bazaar, deferring to campaign rhetoric in order to divine the intentions of the public. It surely makes more sense to simply respect the public's answer to what the referendum *asked*, and make other decisions around that (such as single market access) based on what is in the national interest? You could argue that this was partly the reason the question was left so basic, so that these decisions were not being made by the public. Instead, I think our current government is operating in continual fear of populist revolt, which is neither in the national interest, nor democratic.