Resolving Brexit could take months rather than years as the transitional arrangements are already in place. It is called the European Economic Area (EEA).

British Influence yesterday began a judicial review process which might speed up Brexit, avoid economic turbulence and allow the UK to remain in the single market without the need to negotiate its membership with the EU. We are challenging the Brexit Department to reveal why the government intends to leave the EEA as well as the EU.

The EEA is effectively a greater single market created by a treaty in 1994 with 31 countries: the EU’s 28 member states plus Norway, Iceland and Liechtenstein.  It provides all the benefits of being in the single market but would repatriate to the UK significant powers over migration, money, trade, agriculture and fish. In other words, it would leapfrog prospective Brexit battles and deliver the type of European membership many Britons would be comfortable with.

The fundamental question is whether the UK is a contracting party to the EEA in its own right, or only as a member of the EU. If the UK is in the EEA only as a member of the EU this means membership will lapse automatically with Brexit and all the trouble of trading access to the single market for controlling free movement will take place as predicted once Article 50 is triggered.

If the answer to this question is that the government is a contracting party and they decided not to withdraw from the EEA it will confirm a policy of soft Brexit. The judicial review process would certainly force the government to reveal its position before triggering article 50, but also may be helpful by saving them and the business community from political and economic grief by confirming that EEA membership and thus Britain’s status in the single market is, in fact, a separate issue from Brexit. In essence it will make clear that the UK’s transition arrangement already exists.

If it is confirmed that the government is not a contracting party, EEA membership will expire on Brexit and, if the UK wishes to stay in the single market, it would have to apply to join it. If, however, the UK is a contracting party in its own right and does intend to withdraw from the EEA, it will confirm a policy of hard Brexit. But such a position would beg the question as to whether it has the right to do so. In other words, can the government trigger Article 127 (withdrawal from the EEA) under the Royal Prerogative, or must it consult Parliament first? If the Supreme Court rules that that it is a prerogative power, our departure from the EEA – and ‘hard Brexit’ – is assured. If it is a statutory power, then Parliament has the right to block our departure from the EEA. Of course, this would be a political earthquake as many would claim that the British people were not invited to vote on the single market in the referendum and would cite opinion polling suggesting that up to 90% do not want to leave it.

One thing is sure: for the sake of certainty the government must resolve this question before Article 50 is triggered, not after. If the government is a contracting party in its own right and does not withdraw from the EEA Agreement, it would be a game changer as it might be possible to move much more quickly to Brexit. Article 50 would trigger no more than a tying up of budget and contractual loose ends with the EU because new trading arrangements would not have to be negotiated from scratch. Even if the Brexit negotiations did not go smoothly the UK could not be forced out of the EEA. This would therefore destroy another misconception:  the hardline EU27 talk about bargaining the UK single market access would be hollow: we would be in the single market until we chose otherwise. It would also remove a significant barrier to the continued unity of the UK as it would deprive the SNP of a casus belli for a second referendum.

If, however, the government refuses to seek clarification of the UK’s status, there is the very real possibility that it – and the EU, if it assumes we’re only in the EEA as EU members – will be acting unlawfully. No government can knowingly proceed to Brexit unlawfully just for the sake of convenience without a clarification of its position under the EEA.

by Peter Wilding | 29.11.2016

Peter Wilding is Chairman of British Influence

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