Fresh Brexit legal challenge is blocked by high court

Two senior judges have blocked a legal challenge to the government’s strategy for leaving the single market and the European Economic Area

The Royal Courts of Justice in London
The Royal Courts of Justice in London

Two senior judges have blocked a legal challenge to the government’s strategy for leaving the single market and the European Economic Area.

In a hearing at the high court that lasted less than an hour, Lord Justice Lloyd Jones and Mr Justice Lewis dismissed an application for a fresh judicial review of the Brexit process brought by two sets of claimants.

The new case revolved around Article 127 of the European Economic Area treaty, which states: “Each contracting party may withdraw from this agreement provided it gives at least 12 months’ notice in writing to the other contracting parties.”

The challenge was brought by Adrian Yalland and Peter Wilding, who runs the pro-single market London-based think tank British Influence. They argued that Prime Minister Theresa May cannot use the Article 50 process to take Britain out of the European Single Market because Britain is part of the free trade area both as an EU member state and a member of the European Economic Area (EEA).

Campaigners argued that the parliament must separately legislate to remove the UK from the EEA and the single market.

“The referendum was on membership of the EU, not the EEA, nor of [the European Court of Human Rights],” Yalland said, adding that “it was not an opinion poll on immigration. I want nothing less than Brexit. But anything more than Brexit is for parliament to permit. The government has a mandate, not a blank cheque.”

Under the terms of the EEA, which first came into legal force in 1994, the EU's 28 members and three other signatories are bound to accept the free movement of people, services, goods and capital across their borders.

A second set of claimants — identified only by the letters W, L, T and B for fear of experiencing the kinds of threats directed at Gina Miller, the lead claimant in the Article 50 case — joined the case to highlight the “state of limbo” Brexit will put them in because of their non-UK nationalities.

On Friday, however, the judges refused to give the green light for the fresh challenge, saying that they would give their reasons later in the afternoon.

The government had partially resisted the judicial review application on the grounds that no decision to leave the EEA had yet been made and that it was therefore not a decision that was open to challenge.

James Eadie, prosecuting for the government, told the hearing that since ministers had not yet decided which legal route would be taken to leave the EEA, then the challenge was “premature” and should be rejected.

Yet, George Peretz, representing the lead claimants, told the court that the government’s failure to specify what legal mechanism it would use for quitting the EEA was in danger of creating “profound legal uncertainty and chaos”.

Last month, May pledged to take the UK out of the EU’s single market, saying there is no option that leaves Britain “half-in, half-out”.

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