Article 127 is not the new Article 50 after all
A new would-be Brexit legal challenge hoping to emulate the recent Supreme Court success of Gina Miller reached the High Court today. It lost.
The case was about the United Kingdom’s membership of the single market, a free trade area between the European Union’s 28 member states plus Norway, Iceland and Liechtenstein. Article 127 is the legal mechanism for withdrawal from this. It reads:
Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties. Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.
Campaigners and claimants Peter Wilding and Adrian Yalland said the government has “no mandate” to pull us out of the European Economic Area (EEA) (after all, there was no mention of leaving the EEA on the 23 June ballot paper). The claimants argued it could not do so without parliamentary approval, much in the same way as Article 50 cannot be triggered without the same.
The case was heard in private in December, and the claimants were initially refused permission. However, the applicants renewed their application in open court today.
PM Theresa May has said she intends to withdraw from the EEA and seek a separate free trade agreement with the EU. The claimants said in court that this announcement was amenable to court review. However, the government argued that the challenge was “premature” because ministers haven’t ironed out all the details on how we’ll be Brexit-ing.
After hearing submissions from both Monckton Chambers’ George Peretz QC, for the lead claimants, and Blackstone Chambers’ James Eadie QC, for the government, the court today refused permission. Lord Justice Lloyd Jones and Mr Justice Lewis are yet to give reasons for this.
Speaking to Sky News, legal commentator Joshua Rozenberg said:
The judge was saying to the claimants, really, you’ve come here too soon. Your argument is premature — the government hasn’t made its decisions. If it hasn’t made up its mind, there really is nothing we, the High Court, can do to help you.
Today’s decision is not to be confused with ‘the Dublin case’, a Brexit judicial review challenge scheduled to be heard in the Irish High Court in the spring. This case, championed by Devereux Chambers’ Jolyon Maugham QC, seeks to find out whether notification under Article 50 is reversible. Don’t worry if you got the two confused; one tweeter has already made that mistake.
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