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Article 127: the new Brexit legal stumbling block?

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And it wasn’t a lawyer or a law academic who spotted it

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Does leaving the European Union mean an automatic exit from membership of the single market? This is the question being posed to which Article 127 may or may not be the answer.

Being a member of the European Economic Area (EEA) is not quite the same thing as being a member of the EU. And this matters. Oxford academic Professor George Yarrow, who is also chair of the Regulatory Policy Institute, has written a paper on the subject:

The UK is currently a Contracting Party to the European Economic Area (EEA) Agreement, and exit from the EU does not necessarily imply exit from the Single Market (i.e. withdrawal from the Agreement)… In the absence of a prior withdrawal notice or of steps by other Contracting Parties to try to force UK exit (of a nature not yet identified and not necessarily feasible in the light of the Vienna Conventions on the Law of Treaties and on Succession of States in respect of Treaties), on Day 1 of the post-Brexit era the default position appears to be that the UK would still be a Party to the EEA Agreement.

In other words, Brexit does not mean an automatic exit from the single market — which basically means no Brexit at all.

Earlier this week the BBC broke a story that a think tank, British Influence, may be using Article 127 to challenge the UK government over Brexit.

So. Just when you thought you had got your head around when Article 50 could or could not be triggered, it looks like we have a brand new legal complication.

Legal twitteratus David Allen Green writing about Article 127 in the Financial Times this week was less impressed, however. He argued that it is difficult to see a legal route into challenging the UK government with Article 127. He said:

You cannot obtain an order of a court just because you have spotted a clever legal point.

But that has never stopped lawyers from trying.