We’ve heard politicians and economists warning about the economic impact of Brexit. A new report released on Monday (28 November) found that major sectors of the UK economy would be affected if they lose access to the single market. It was commissioned by an alliance of Tory, Labour and Liberal Democrat politicians who are trying to halt a hard Brexit. We’ve also seen the devolution governments asking for participation in the Brexit negotiations, and how Parliament will be voting on triggering article 50. 

But, there are more challenges for the UK government on the horizon. Pro-EU lawyers are now arguing that the government could be breaking the law if Britain’s EU membership of the European Economic Area (EEA) is lost along with its EU membership. They claim that the EU referendum asked the UK public the simple question of whether to stay or leave the EU, and didn’t address the more complex issue of economic access to the EU’s single market. Pursuing a hard Brexit and losing both seems to be the way Theresa May wants to Brexit, but the lawyers are confident that the UK can remain in the single market, even if it leaves the EU.

They argue that EU membership is a different issue from that of the single market, and that abandoning one doesn’t necessarily mean to leave the other. By bringing forward the review, there is a possibility that the courts will support this, forcing the government to allow MPs to vote for the UK to remain in the single market until a new trade agreement with the EU is decided.

British Influence think tank

Lawyers of the pro-single market British think tank, British Influence, said on Monday that they plan to produce a judicial review which will stress how the June referendum didn’t ask Brits to vote on the issue of accessing the EU’s single market. They will also demand that parliament should be involved in deciding whether the UK stays in the EEA. The European Economic Area (EEA) refers to the free movement of goods, persons, services and capital within the European single market.

Jonathan Lis, deputy director of British Influence, said that “the single market wasn’t on the ballot paper”, and “to leave it would be devastating for the economy, smash our free trading arrangement and put thousands of jobs at risk. Why should people not only throw the baby out of the bathwater, but the bath out of the window?”

Lis told Reuters:

"We're leaving the EU, that's fine, but we don't need to leave the single market and the government should be embracing this intervention not disputing it."

A spokeswoman for the government said that Britain was part of the EEA Agreement as an EU member state, but "Once we leave the European Union we will automatically cease to be a member of the EEA," she said. She added: "The referendum result will be respected and we intend to invoke Article 50 (the formal mechanism to leave the bloc) no later than the end of March next year." The government will also be making its case against the ruling by the High Court that parliamentary approval is required for triggering article 50 in early December. 

EEA and EU membership

The British Influence lawyers are claiming that the EU and EEA are separate organisations. For example, Croatia joined the EEA nine months after the EU, something that demonstrates how the two aren’t inseparable. The think tank argues that the government’s insistence that membership of the EU and EEA goes hand in hand suggests, “that it is deliberately aiming for a hard Brexit outside the single market. This option was not on the referendum ballot paper.”

The lawyers believe that Britain can remain a member of the EEA and retain the benefits of free trade. There is no legal agreement that says that the UK is only allowed to be a member of the EEA, unless it’s also a member of the EU. They added that the government shouldn’t just look at article 50, but also articles 127 and 128. Article 127 requires 12 months’ notification before leaving the EU, while article 128 says that countries that become members of the EU don’t necessarily have to join the EEA.

After Article 50, Now Article 127

While the government argues that leaving the EEA means also leaving the EU, the think tank says this is not the case. Invoking article 50 won’t take Britain out of the EEA and the single market. That, only article 127 can do. Article 127 refers to the withdrawal from the EEA Agreement which created the single market, and triggering this article is the only way to leave the single market. 

But if we decide to stay within the EEA while leaving the EU, this might probably be the wisest thing we can do, and no one will realise we exited the EU, because it would be the softest Brexit ever. Lis said that the think tank wasn’t trying to subvert the referendum result: “We were pro-Remain, now we’re pro-single market. We’re not campaigning for a second referendum. We’re already in the EEA – why wouldn’t we try and stay in it?”

All of this, of course, is perhaps a desperate effort to stop the worse to come. And it might be presumptuous, because none of this can be decided by the UK only. It might postpone the process, create some momentary hope for Remainers, or even annoy Theresa May, but, in the end, it will be up to the EU member states to agree whether this or that is considered possible or acceptable.