First it was Article 50 and the mechanism for leaving the European Union which got all the attention. Then Article 50(3) started getting noticed, with its opening for extending – or even effectively cancelling – the two year deadline for leave the E.U. which Article 50 sets out.
Now it’s Article 127 muscling into the limelight. Article 127 of the Agreement on the European Economic Area (EEA), that is. It sets out the procedure for leaving the EEA:
Each Contracting Party may withdraw from this Agreement provided it gives at least 12 months’ notice in writing to the other Contracting Parties.
So a persuasive legal argument (which British Influence is trying to enforce through judicial review) goes as follows: the Article 50 can be used for the UK to leave the EU. But unless the Article 127 process is also triggered, the UK will remain in the EEA. Remaining in the EEA keeps Britain in the single market but outside the EU, as are Norway, Liechtenstein and Iceland.
But that also means keeping all the conditions of EEA membership including, crucially, both freedom of movement of people and being bound by large areas of European Union regulation (yet without taking part in deciding what the regulation should be in the way that an EU member gets to have its say).
Which means that the demands of hardcore Brexiters (and the promises of the government) to cut immigration can only be kept if Britain also leaves the EEA. Which means invoking the Article 127 process.
But if the courts rule in favour of Parliamentary approval being required for invoking Article 50, the same will look to apply to invoking Article 127. And how will a vote in Parliament on invoking Article 127 turn out?
That would be a vote on whether or not Britain should leave the Single Market, which most definitely was not the question on the ballot paper in the European referendum – giving MPs plenty of legitimate room to vote against invoking Article 127, keeping Britain in the Single Market, keeping Britain in the EEA, keeping freedom of movement and more.
I think Article 127 is going to be getting rather more of the limelight soon…
UPDATE: Legal action over Article 127 lost its first round in the courts.
Two senior judges have blocked a legal challenge to the government’s strategy for leaving the single market and the European Economic Area.
In a hearing at the high court that lasted less than an hour, Lord Justice Lloyd Jones and Mr Justice Lewis dismissed an application for a fresh judicial review of the Brexit process brought by two sets of claimants…
Adrian Yalland and Peter Wilding, who brought the challenge, said the decision meant that they may be able to bring their challenge over article 127 at a later date. In a joint statement, they said the ruling “left the door firmly ajar for future proceedings should the government not resolve this issue”.
They added: “Were it not for us bringing this action, the government would never have addressed this issue. We were right to bring this challenge and unless the government gives business and the country the certainty it needs and deserves, it is highly likely we will be here again.”
James Eadie QC, for the government, told the hearing that since ministers had not yet decided which legal route would be taken to leave the EEA, the challenge was “premature” and should be rejected. [The Guardian]