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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

brexit

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.

41 Comments

Anonymous

In the end of the day people should not be trying to block brexit at all. The judges shouldn’t have the right to stop the peoples will be listened to. I understand constitutional law is a massive part of the UK but democracy is an even bigger part and we must listen to the people. Law should not be able to override the will of 17.4 million people.

(10)(61)

Not Amused

Indeed. The glee of some people is deeply unseemly.

Surely, given what happened in the states, given this problem of ‘post truth’, surely then the answer is more honesty – not more disingenuous manipulation.

(8)(20)

Anonymous

I don’t understand why so many people disagree on legal cheek disagree with these sorts of comments. Democracy is more important then constitutional law and they only reason most of them are backing the judges are because they voted to remain. Some people won’t give up. We need more openness in regards to brexit however we need brexit to happen otherwise I think there will be major problems with society if it doesn’t. If Gina Miller and the other law suits work and delay brexit then I genuinely believe there will be riots and it shall be the fault of the judges and the claimants for not letting the will of the people be listened to.

(7)(30)

Anonymous

You write like a ten year old.

(35)(5)

Anonymous

I’m 9 and a half

(14)(2)

Anonymous

Doesn’t the position need to be clear though? We can’t just fudge Brexit and leave the legal position in a state of uncertainty to be resolved by pointing to a referendum result.

(20)(0)

Anonymous

I should add that despite being fiercely pro-European myself I think it is indisputable that as a matter of political morality Brexit has to happen. But such a momentous change needs to be done properly. Why on earth had no one in government even considered this point about EEA membership? It suggests a certain lack of diligence. If the government (and the GLS was competent) then when this story broke the government response would have been “we have taken advice on the point and this is what we think the situation is.”

(20)(0)

Tordenskjold

“Political morality” top trolling.

(0)(1)

Anonymous

I am the person from the first comment. I completely agree with you that brexit needs to happen however we need to do it in a smart manner . People shouldn’t be trying to delay it but instead they should be trying to help it. We should be thinking about the smartest ways to go through with brexit rather then the government having to constantly fight off legal challenges from people that don’t want it to happen. Brexit needs to happen in an open manner in which everything is scrutinised to ensure that we have the best possible outcome. All I was stating in my original comment is that brexit has to happen and the more legal challenges there are the less time the government will be able to spend on giving us the best possible brexit.

(0)(3)

Not Amused

“Brexit needs to happen in an open manner in which everything is scrutinised to ensure that we have the best possible outcome.”

I know the LIb Dems are saying this and I am conscious that young people often listen to the nonsense the Lib Dems say. So just to be clear:

1) Carrying out the Brexit negotiations in public is a colossally stupid idea.
2) Even the Lib Dems know this.
3) The Lib Dems are being dishonest (which is quite common) in calling for this. They know that what they are really doing is trying to make the negotiations as hard as possible in order to prevent Brexit.

If a young person listening to the Lib Dems starts to get genuinely confused and thinks that it is actually a good idea to carry out difficult negotiations in public then that young person is going to look stupid. The innocent, well intentioned, young person becomes a form of collateral damage in the Lib Dem campaign of dishonesty, if you will.

So just bear this in mind if you are thinking of mentioning any of these issues at a university or job interview.

(6)(8)

Anonymous

Why should I help? I accept this has to happen but fucked if I’m going to help in any way. From my perspective, you guys shat the bed. I’m not going to help you clean it up.

(2)(0)

Pantman

Scrutinising the process *is* helping.

(1)(1)

Pantman

What, honesty like David Davies saying the UK can pay to gain access to the Single Market? Greg Hands saying we could be members of the customs union? Boris saying Turkey should be in the EU, as long as we’re out?

How about the government wanting to do special deals for certain market sectors?

Or even your own notions of the financial sector getting a pass to the EU by equivalence?

These aren’t exits from the EU, they are profoundly undemocratic and are just perpetuating some kind of myth of Brexit.

These things are not

(1)(0)

Anonymous

But they haven’t stopped it at all. They’ve just provided clarification over the framework it needs to happen in. The way our constitutional law works in this instance is to safeguard democracy. Judges haven’t blocked anything they simply said it requires an act of parliament as it should. If parliament votes against it then the people will make their displeasure heard at the next general election. Countries don’t update as swiftly as your iPhone.

(13)(0)

LawNOrder

Constitutional Law is the basis for democracy, you loon

(17)(1)

Anonymous

What a prat. Clearly you have no concept of the role of the courts or the rule of law.

(7)(0)

Anonymous

And you’re a prat as clearly you have no concept of democracy.

(0)(5)

LawNOrder

Democracy isn’t a bunch of snot faced toddlers grabbing shouting “me me me”. Ignore the brain dead halfwits who voted Leave, execute some benign neglect and move on.

(2)(0)

Anonymous

Calling 17.4 million people halfwits. And you wonder why the general public hate solicitors and barristers so much. All you are is a pompous prick who probably works in a city firm and whose whole life revolves around law. You put a bad reputation on our profession and if you are stating that everyone who voted leave is a halfwit, then you are quite frankly an idiot.

(0)(8)

LawNOrder

Everyone who voted Leave is a halfwit and an idiot and every other insult you could possibly think of that would infer their intellectual inferiority.

How do I know?

Because only a drooling imbecile would vote to make themselves poorer.

(5)(0)

Anonymous

I think you mean *imply* their intellectual inferiority.

(0)(0)

Anonymous

First of all you are an idiot for believing that, you are completely arrogant and ridiculous in what you have just said. You are literally the reason so many people hate solicitors and I can see why. Even as a solicitor I hate other solicitors. You are the pinnacle of idiocy. How do you know that brexit will make us poorer when we haven’t even began brexit. How can you say for certain leaving the EU is a bad option when we have never left the EU before. I genuinely hate stuck up self-centered people like you and you genuinely dishearten me knowing that there are people like you in our profession.

(0)(6)

Not Amused

I am very sorry to disappointed but I am not an idiot. I researched the matter heavily. I voted leave.

It is pretty offensive to be called an idiot. This narrative that every leaver is an uneducated moron is unedifying.

I remember the campaign. I recall how everyone sensible on the Remain campaign accepted that an unreformed EU was a bad idea. Well it didn’t reform. And it isn’t going to reform. In those circumstances it seems perfectly wise to want out.

I am far from the only intelligent Barrister to vote leave. It is unbecoming for democracy for either side in a complex debate to pretend they were the ‘clever person’s’ choice. They were not. It was a difficult decision. I am deeply upset at the ER’S failures. They make the legal regulators look competent.

Pantman

Look at the plunge in the value of the pound – that has made you poorer, whichever way you look at it.

LawNOrder

Yeah, argue it any way you like, Brexit means Moron.

Not Amused

“LawNOrder
Dec 4 2016 8:58am
Yeah, argue it any way you like, Brexit means Moron.”

I see.

But you see, I also see, that the pro-EU party in the USA lost (so no help from them). I see the Italian PM has resigned. I see some issue, as I understand it, with Greek debt. I see that France, Spain and Portugal are in recession. I see 11 members who can barely afford to keep the lights on.

I see 27 members of this club. I see far fewer able to pay the subs – and I see the subs went up again (pre-Brexit).

You see, some of us knew about Deutsche Bank und des Landesbankensektor before we voted.

I must keep telling myself what a moron I am. I never wanted this. I never wanted the EU to fail. I had hopes and dreams. But you have to cut your loses in life. Bless their cotton socks – but they’re screwed.

Anonymous

63% of the electorate didn’t vote leave.

37% does not represent “the will of the people”

Duh!

(0)(0)

Anonymous

In after Not Amused.

(0)(0)

Anonymous

This is bollocks. There are two types of EEA member states, once the UK leaves the EU it will not fall into either category and will leave the EEA. The situation is the same as that under the GPA.

(0)(0)

SingaporeSwing

Brexit is happening. Get over it.

(1)(18)

Anonymous

F*ck off fascist.

(7)(2)

Adam Fouracre

The EEA Agreement is a ratified treaty incorporated by Section 1(2)(m) ECA 1972.

Even if a separate notice has to be served

(0)(0)

Adam Fouracre

Then it will still turn on the same question as Miller. Does the ECA 1972 confer statutory rights or EU rights.

This is just a question of drafting a second letter if necessary.

(0)(0)

Sacary Bagna

Don’t see why the judges should receive the backlash for doing their job properly making sure government stays in line. Is it really their fault the government is a shambles and has no plan whatsoever?

(11)(0)

Wolverhampton Llb

Hey guys Llb student here. Will I be getting myself that TC boi?

(1)(8)

LawNOrder

As funny as AIDS

(1)(0)

Anonymous

The point was raised back in June by at least one lawyer actually but didn’t get much traction then. (I don’t actually think it is right thought I wish it was.)

(0)(0)

Phil Dyer

We should all be grateful for these legal challenges. Better a short delay now, to ensure we do everything legally. You can bet that, later on in the 2 year negotiations, any illegalities which come to light could do far more damage to the brexit process. Ideally David Cameron should have addressed these questions before the referendum, so that, when we voted, we knew what the legal process of brexit might be. The earlier that these questions are resolved, the smoother brexit will go. Why can’t we all see that?

(3)(0)

Anonymous

The issue seems to be administrative.

The government has stated they intend to proceed with Brexit. The Court case is concerned with the procedure of leaving.

This is not about going against the referendum outcome – the case is asking whether the government is within its rights to begin the process of leaving the EU – by triggering Article 50 of the Lisbon Treaty – without the consent and authorisation of Parliament.

If it needs to go through Parliament then it will be nodded through with a minor delay caused by the Lords.

(3)(0)

Bumcheeks McGuffin

Is that UKIP-fellating agent provocateuse Jane around? What would she say? I haven’t bothered looking at the other comments. I’m guessing it’d be some we’ve-voted-so-get-over-it-move-on-jinx-no-comebacks-my-fingers-are-in-my-ears-la-la-la-I-can’t-hear you bollocks. I’m sure there are a few others lurking in the comments above, some of those 17 million odd thickoes must be able to type.

(0)(0)

Anonymous

You are one angry Remainer dude. You might be right, but your pulpit ranty frothing will bring on a stroke. Calm down. Have a drink and give the next CLP meeting a miss.

(0)(0)

Comments are closed.