A new Brexit legal challenge could give MPs the power to stop Britain leaving the single market

Leon Neal / Getty
  • Exclusive: A fresh legal challenge to Theresa May’s Brexit plans is being planned for March.
  • Campaigners are preparing to take the government to court over its intention to take Britain out of the single market without parliamentary approval.
  • “The legal team is already assembled,” lead challenger tells BI.
  • The courts have already forced May to give MPs a vote on triggering Brexit.

LONDON – Theresa May could be forced to give MPs a vote on leaving the single market if a new legal challenge proposed for March of this year is successful.

Campaigners are planning to mount a High Court challenge within months against the prime minister’s plans to take Britain out of the single market without first seeking the approval of Parliament.

The upcoming case hinges on the European Economic Area (EEA) and the legal question of whether Britain will automatically leave the organisation as part of its departure from the European Union.

The EEA is an organisation containing all EU member states plus Norway, Lichtenstein and Iceland. All members of the EEA participate fully in the single market.

May has repeatedly insisted that Britain will leave the single market when it leaves the EU in March 2019.

However, under Article 127 of the EEA Agreement, which the UK signed up to and incorporated into national law in 1993, members wishing to withdraw must give an official 12-month notice.

Pro-single market campaigner Adrian Yalland argues that the UK government would be breaching international law by trying to leave the EEA without triggering Article 127.

Yalland is behind this new case and has spent weeks assembling a legal team which is ready to take the case back to the High Court at the end of March once the government’s stance on leaving the EEA is confirmed.

He argues that if the government is obliged to trigger Article 127, it must first secure parliamentary approval before doing so, in a mirror of what happened with Article 50 last year.

This, in effect, would give MPs a vote on whether to leave the single market.

However, the government plans to contest the case.

In a statement sent to BI, a DExEU spokesperson said: “Our legal position is clear: we do not need to trigger Article 127 for the European Economic Area Agreement to cease to have effect.

“When we leave the EU the Agreement will no longer operate in respect of the UK.”

Yalland told BI that legal action in the spring would be “inevitable” if this remains the government’s stance.

High Court challenge

The challenge is similar in essence to that brought to the courts last year by Gina Miller. Miller successfully argued that Parliament must pass legislation before May could initiate Brexit by triggering Article 50 of the Lisbon Treaty.

Stephen KinnockStephen Kinnock’s officeLabour MP Stephen Kinnock has led calls for Parliament to be given a vote on leaving the EEA.

“An unaccountable domestic government is no more acceptable than an unaccountable European one. This is not the Brexit I voted for,” Yalland told BI.

“The smokescreen of Parliamentary scrutiny is exactly that – an illusion.

“Those Brexiter MPs who have campaigned for the restoration of Parliamentary sovereignty but who do not now seek to exercise it are demonstrating nothing other than rank hypocrisy.”

This legal challenge, which is set to be represented by barrister George Peretz QC, was first put to the High Court by Yalland and his British Influence colleague Peter Wilding in early 2017.

However, two senior judges blocked the case on the basis that the government had at the time of the hearing not established how it intended to terminate Britain’s membership of the EEA.

Yalland and Wilding said the ruling had “left the door firmly ajar for future proceedings should the government not resolve this issue.”

So why is March so important?

Under the EEA Agreement, any country wishing to leave must give 12-months notice.

This means that the government would have to trigger Article 127 in March of this year in order to coincide with the date Britain is set to leave the European Union, March 29, 2019.

A springtime court case would provide the government with another huge Brexit headache given that negotiations between British and EU are set to move onto the issue of future trade relations in March.

Opposition MPs demand EEA vote

Labour’s Stephen Kinnock and Heidi Alexander are some of the MPs who have led calls from the opposition benches for Parliament to be given a vote on leaving the EEA.

Reacting to the prospect of a court case on the issue, Kinnock, who is also a member of the parliamentary Brexit committee, told BI: “As I said in a Commons debate I secured on this very issue back in November, the fact is that the UK is an independent contracting party to the EEA Agreement, and that the government is therefore legally obliged to trigger Article 127 of that Agreement in order to leave the EEA.”

He added: “Unfortunately, it seems that the government is once again planning to dig its heels in, so the ball will once again be batted into the judiciary’s court. However, I believe that this is something that should be decided in Parliament, rather than in the courtroom.

“EEA Membership wasn’t on the ballot in June 2016, and so if that famous phrase ‘take back control’ is to mean anything, then surely Parliament must be given the opportunity to debate and vote on this vitally important issue?

“EEA Membership would give us unfettered access to the single market without the obligations of full single market membership, it would take us out of the jurisdiction of the ECJ and afford us the opportunity to reform free movement.

“It, therefore, doesn’t cross any of the Prime Minister’s red lines, delivers on our commitment to a jobs-first Brexit, and offers an opportunity to re-unite our deeply divided country.”

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