Monday, 12 December 2016

The Article 127 challenge

It’s probably a fair bet that few of us thought much about – if we had even heard of – Article 50 of the Lisbon Treaty until recent months. Now, just as that is becoming part of every news story, we need to give attention to Article 127. This is not (as is sometimes being misreported) an article within the Lisbon Treaty, but rather within the European Economic Area (EEA) Agreement of 1992, to which the UK was a signatory. The significance of this is that as such, it may be that the UK remains a member of the EEA – which means the single market – even if it leaves the EU after invoking Lisbon A50. This is because to leave the EEA arguably requires invoking A127 of the EEA Agreement. Whether or not this is so is to be the subject of a judicial review in a case being brought to the High Court by campaigners to stay in the single market.

The complex legal issues at stake are discussed in Professor Steve Peers’ ever-useful EU Law Blog, and I will not repeat what he says (and am not competent to add to it). The political consequences if it were upheld that A127 also needs to be invoked would be interesting. At one level, this could simply be done in the same way as with A50 – by the government, with or without parliamentary authority (depending on the outcome of the Supreme Court case). But the dynamics might be very different.

The Referendum asked about EU membership, so the result makes it difficult for Remain MPs to withhold consent to triggering A50. However, nothing was asked about leaving the EEA, so withholding consent to trigger A127 would be politically easier. This is a version of the point I’ve repeatedly made on this blog, namely that the referendum did not mandate hard Brexit; but it gives an important legal ballast to that argument, since it would mean that a specific legal process (A127) must be followed for hard Brexit to occur.

Of course all this may be rendered irrelevant if the judicial review does not uphold the argument that A127 must be invoked in addition to A50 in order to leave the single market; or, equally, it could be irrelevant if the government decide for a soft Brexit of their own accord (on which, we are no further forward than when I last posted).

Inevitably this latest case has outraged Brexit politicians and press, but they are going to have to get used to the fact that the Referendum was not the end but the beginning of a very long and complicated set of political and legal processes. That is a consequence of voting leave, and if those who did so don’t like it they should have listened to the many warnings – dismissed as ‘project Fear’ – that this would be so. In a similar way, the call today from Gisela Stuart, the Labour MP who was a leader of the official Leave campaign, to guarantee the rights of EU citizens in the UK and vice versa prompts an obvious thought. She should have thought about what it would mean for those affected before she lent her weight to the ferociously anti-immigration campaign.

The Leave campaign - as they delight in telling us - won, and now they must take responsibility for all of the consequences and for delivering Brexit. They are no longer a campaign against ‘the ruling elite’; they are the ruling elite. So they will be held to account both for the promises they made, including the £350 million a week for the NHS which they now disown, and for their lack of planning for what the process and outcome of leaving the EU would consist of. So, as in the present case, they can hardly complain that the courts must decide on whether A127 is relevant: they should have worked out what needed to be done to leave the single market as well as the EU before they recommended that people vote for them. On which subject, there is a pervasive attempt amongst Brexiters to claim, now, that they had always made it clear that a vote to leave the EU was also a vote to leave the single market. As this instructive video shows, they did not. So just as they are trying to re-write history by dropping the £350M slogan, they are inventing claims they did not make.

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