LONDON — There is a strong chance that Theresa May is legally required to secure parliamentary approval before she can take Britain out of the European Single Market.
That’s according to Jonathan Lis, deputy director at think-tank British Influence. The London-based research organisation is convinced that a crucial aspect of the Brexit debate is going ignored: Britain’s membership of the European Economic Area (EEA).
Britain Influence is so convinced that it plans to take legal action against the government before the prime minister triggers Article 50.
To put it in simple terms, the EEA is an organisation which provides full access to the EU’s single market for all 28 EU member states, plus three members of the Economic Free Trade Association who are not EU members: Norway, Iceland, and Lichenstein. Britain signed up to the EEA as a contracting party of the EU in 1994.
The government’s position is that by triggering Article 50 Britain will automatically depart from both the European Single Market and EEA — because Britain is part of the EEA as an EU member state. However, British Influence is in the process of hiring a team of lawyers who argue will that Article 50 does not extend to Britain’s EEA membership.
“It’s a complicated argument,” Lis noted when Business Insider met up with him last week. But the importance of the EEA question cannot be overstated. One one hand, it could give MPs greater power in determining how and when Britain leaves the EU, but, as Lis later explained, it could also give Britain a much stronger hand during Brexit talks.
Business Insider’s Adam Payne: So what’s the premise of your legal argument?
Jonathan Lis: So, the question is: when we leave the European Union, are we also leaving the EEA?
The idea so far is that we would be because of the assumption that you have to be a member of the EU or EFTA — which is where Norway, Iceland, and Lichenstein come in — to be part of the EEA.
We can’t be forced out of the single market by the EU, no matter how much they try
But, Article 127 of the EEA agreement states that you have to give at least 12 months notice if you want to leave. This suggests that the withdrawal process is separate to that of Article 50.
So, there two points to this. You have to decide firstly whether the government is correct and we are only a contracting party to the EEA as part of the EU. Or, are we actually there independently, in which case you would have an issue. If it is the latter then we can’t be forced out of the single market by the EU, no matter how much they try.
On the other hand, if the government wants to take us out of the single market by triggering Article 127 of the EEA agreement, then there is a case that this would not be a matter of royal prerogative but parliamentary statute and we would have another case like the Article 50 one in the courts at the moment. That’s because the EEA Act (1993) — the basis for Britain’s membership of the EEA in domestic law — was an act of parliament that MPs voted on in the normal way. If you vote on it, then you also need to vote to repeal it.
Payne: If Britain’s EEA membership is independent and the EU can’t force us out of the single market then this would completely change the dynamics of Brexit negotiations, wouldn’t it?
Lis: Exactly. In the negotiations, the pendulum swings from the EU to the UK and suddenly we have a cast iron negotiation tool because we cannot be forced out of the single market. This is a potential golden opportunity for the government and Brexit supporters. This gives us the cards in the negotiations and grants us so many of the red lines that Leave supporters wanted.
“This gives us the cards in the negotiations and grants us so many of the red lines that Leave supporters wanted.”
Being in the EEA grants you legal sovereignty because you’re not subject to the European Court of Justice anymore. You don’t pay direct budget contributions to the EU. Then there’s the safeguarding option you get on the free movement which is much better than what you get in the EU. This is about as ‘having your cake and eating it’ as you could hope for.
Payne: Please expand on the safeguarding option. Why would Britain be able to have its cake and eat it?
Lis: We are not saying that EEA membership as a non-EU state is a get out of jail free card.
Obviously, we are not living in a fairytale and everyone knows that whatever we do there will be give and take. But, what the EEA offers is Article 112 which allows states to take unilateral action that they can demonstrate that there has been serious social or environmental difficulties as a result of the four freedoms. For example, Iceland triggered it in 2008 to restrict the free movement of capital in their banking crisis.
Now, it’s very difficult to do this if you’re an EU state but if you’re a non-EU EEA member you can do it unilaterally. If Britain can demonstrate that it has been harmed by the free movement of people, then that would be an option. It would not be an easy option. It would have to go to a committee and there would be retaliation. So we’re not saying this is the perfect option — but there is more leeway than there is in the EU.
We are not opposing Brexit in any way, shape or form. We believe that this might actually help Brexit and make it easier because if you take the single market out of it then the EEA could be used in a transitional arrangement or an arrangement for as long as we want it to be. Then we could focus on the myriad of other issues emerging from the process. It should be celebrated by Leavers, not condemned.
Payne: You point out that your argument is not about opposing Brexit but are you afraid that it will be interpreted this way? Especially in light of the abuse Gina Miller received after winning the High Court case against the government?
Lis: I would be being disingenuous if I said it wasn’t. It’s very important to establish that this is not about stopping Brexit. Brexit is going to happen. That will take its course. This is about establishing a legal due process. If there’s a chance the government is acting unlawfully, then it’s a point of democracy to bring that to the government’s attention.
We are not saying that they are definitely wrong and we are right — we are saying that there’s a very strong case in our favour.
Payne: How hard is it going to be to communicate this point and the complexity of your argument to the public?
Lis: It’s going to be a challenge. We are already branded as enemies of the people in the Daily Express. A UKIP politician denounced me as an elite on the radio the other day. We are bracing ourselves for scrutiny and criticism and we hope we can communicate to people what we are trying to do and what we are not trying to do.
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