Urgent Hearing for Article 127 Claim
By Joshua Rozenberg QC originally published on Facebook
The High Court has ordered an urgent hearing in the “Article 127” case that I discussed here last month: https://www.facebook.com/JoshuaRozenbergQC/posts/239852969769960
An application for permission to seek judicial review was lodged on 29 December. Having heard from one side only, Mr Justice Knowles refused the claimants permission a day later. But on the assumption that they would want to renew their application for permission — as indeed they do — the judge ordered an oral hearing during the week beginning 16 January, at which the government will have a chance to respond.
That’s expected to last for no more than an hour and if permission is then granted it’s expected that there will be a full hearing within a few weeks.
The claim is being brought by Adrian Yalland, a former public policy specialist who voted Leave in the referendum last year, and Peter Wilding, a Remain supporter who founded a think tank called British Influence in 2012. A related claim has been lodged by other claimants.
All of them are challenging the government’s view, expressed most recently in a written Commons answer on 20 December, that the UK will automatically leave the European Economic Area (EEA, or “single market”) when it leaves the EU.
The government says that “as the UK is party to the EEA agreement only in its capacity as an EU member state, once we leave the European Union the EEA agreement will automatically cease to apply to the UK”.
In the claimants’ view, the UK will remain a member of the EEA unless and until the UK gives notice of withdrawal under article 127 of the EEA agreement.
The claimants also contend that legislation is required before ministers can give notice under article 127.
Clearly, the answer to the second question will be informed by the forthcoming decision of the Supreme Court in the separate case brought by Gina Miller. She argued that the government could not trigger Brexit using its inherent prerogative powers.
Detailed legal arguments have been prepared by the claimants for the permission hearing this month. If these appear online, I’ll aim to provide links.
It’s clear from the speed with which this case is being handled that the courts are taking it very seriously. If the claim is ultimately successful, it will ensure that a decision about the UK’s continued membership of the single market is taken by parliament. As I said before, that’s where the decision surely belongs.