UK government faces legal challenge over single market

Lawyers to argue June’s EU referendum did not address question of economic access and that parliament should have a say

Pro-Brexit demonstrators protest outside parliament

Pro-Brexit demonstrators protest outside parliament in London last week.
Photograph: Jack Taylor/Getty Images

Theresa May’s government is facing a legal challenge over whether it should seek to retain membership of the single market after Brexit.

Lawyers will argue that June’s referendum asked the public a single question over whether the UK should exit the EU, and did not delve into the more complex issue of economic access.

They will argue that parliament should have a say into whether the country could remain in the European Economic Area, in line with other non-EU countries such as Norway.

Jonathan Lis, the deputy director of the British Influence – which is planning to bring forward a judicial review, said: “The single market wasn’t on the ballot paper. 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?”

Asked about the Vote Leave campaign telling voters that Brexit would mean leaving the single market, Lis said that they also promised voters “£350m a week for the NHS”.

“This is not an anti-Brexit measure,” he added. “This would give us all the power, as the EU could not force us out [of the single market] if we were part of Efta.”

The European Free Trade Association refers to a group of countries, including Norway and Switzerland, which have liberalised trade within the EEA but are outside the EU itself and its customs union so can sign their own free trade deals. Critics point out that the countries do not have any way of limiting European immigration.

However, Lis argued that there was “discretionary control” over the freedoms within Efta that went beyond the EU, citing the example of Switzerland negotiating an agreement through which vacancies could be advertised initially to local residents.

The basis of the legal action would be that the government has an opportunity to stay within the single market but is rejecting it.

It will claim that Croatia, by joining the EEA nine months after the EU, proves that the two organisations are separate, so that leaving one need not mean leaving the other.

“The fact that the UK dismisses these arguments out of hand suggest that it is deliberately aiming for a hard Brexit outside the single Market. This option was not on the referendum ballot paper,” he added, calling the legal challenge a “game-changer on every level”.

Under EEA membership, Britain would retain the benefits of free trade. The group, which has written to David Davis, the Brexit secretary, suggests the government should not just be focusing on article 50, but on articles 127 and 128 as well.

It says there is no legal consensus that the UK is only “a contracting party to the EEA only as a member of the EU There are numerous reasons why it may be a member in its own right: article 127 of the EEA agreement, for example, requires members to give 12 months’ notification to leave, without any reference to article 50; article 128 states that countries acceding to the EU ‘may’ apply to join the EEA, but are not compelled to.”

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