Fresh Brexit challenge in high court over leaving single market and EEA [The Guardian]
Four anonymous claimants allege that separate parliamentary approval is needed to quit the European Economic Area
by Owen Bowcott, originally published in The Guardian
A fresh set of legal challenges asserting that the UK will remain within the single market and the European Economic Area after Brexit have been lodged at the high court.
A group of four anonymous claimants – who are a mix of overseas, EU, EEA and UK nationals – have joined a judicial review of government plans to leave the EU, alleging that separate parliamentary approval is needed to quit the EEA.
The new challenges issued on Thursday will consolidate the case already initiated by Peter Wilding and Adrian Yalland. Wilding runs the pro-single market organisation British Influence. The government and the European commission insist that the UK departs the EEA at the moment it leaves the EU.
But article 127 of the EEA agreement requires contracting parties, which include the UK, to give at least 12 months’ notice before leaving, the claimants point out. That, they maintain, implies a separate departure process from the one in article 50 of the EU treaty that has been disputed in the supreme court.
The new claims, in the names of those identified only as W, L, T and B, have been accepted by the high court. One of the barristers involved in the claim, S Chelvan of No5 Chambers, said: “We are seeking a declaration that the UK cannot withdraw from the EEA without the approval of HM Treasury and an act of parliament.
“These are ordinary working men and women who have decided to make their futures in the UK and wish the UK to be their permanent home. One has mixed nationality; one is a non-EEA national but married to an EEA national. We are trying to highlight the various types of people who will be left in a state of limbo following our withdrawal from the EU.”
The European Economic Area Act 1993, Chelvan said, established EEA rights in UK domestic law. The four latest cases are being coordinated by the London law firm David Tang & Co. The lead barrister is Ramby de Mello, of No5 Chambers, who represented the interested parties in Gina Miller’s supreme court article 50 challenge.
Wilding, the man credited with inventing the term Brexit in 2012, has said that his claim against the Department for Exiting the European Union, headed by David Davis, could be heard as early as February.
On Thursday night, Yalland said: “For a government action to be legitimate it must have both a democratic mandate and be conducted lawfully. Firstly there is no democratic mandate to leave the single market treaty because neither the EU Referendum Act or the referendum question raised that possibility – parliament must therefore democratise any decision to withdraw from the single market treaty by passing an act of parliament.
“Secondly, acting lawfully includes fulfilling obligations to withdraw according to the terms of the treaty which means triggering article 127 [of the EEA agreement which requires members to give 12 months’ notification to leave] and not erroneously relying on triggering article 50 of the Lisbon treaty. Until such time as the UK gives notice according to the terms of the single market treaty our rights and obligations contained in that treaty will continue. To ignore or frustrate those rights would be an unlawful act of arbitrary government.”
Responding to the case earlier this month, a government spokesman said: “The UK is party to the EEA agreement only in its capacity as an EU member state. Once the UK leaves the EU, the EEA agreement will automatically cease to apply to the UK.”
- This article was amended on 29 December 2016 to make clear that the case was being brought by Peter Wilding and Adrian Yalland.