Fresh Brexit legal challenge blocked by high court

Campaigners had argued parliament must legislate separately to trigger article 127, taking UK out of European Economic Area

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.

Parliament has already given the government its approval to trigger Brexit under article 50 of the Lisbon treaty following a historic legal action in the supreme court over parliamentary sovereignty.

Giving their reasons for turning down the judicial review application, Lord Justice Lloyd Jones said: “In our judgment these present claims are premature. The relevant situations against which the claims might be assessed have not yet occurred.”

Adrian Yalland and Peter Wilding, who brought the challenge, said the decision meant that they may be able to bring their challenge over article 127 at a later date. In a joint statement, they said the ruling “left the door firmly ajar for future proceedings should the government not resolve this issue”.

They added: “Were it not for us bringing this action, the government would never have addressed this issue. We were right to bring this challenge and unless the government gives business and the country the certainty it needs and deserves, it is highly likely we will be here again.”

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

George Peretz QC, for 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”.

The European court of justice in Luxembourg, which decides EU law, may need to be consulted to resolve the confusion over how the UK “disentangles” itself from other European states, George Peretz QC said.

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

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 Yalland and Wilding, who runs the pro-single market organisation British Influence. Wilding is credited with inventing the term Brexit in 2012.

Peretz maintained that the prime minister, Theresa May, had already announced that the UK would be leaving the EEA and the single market.

What is in dispute is the legality of the various mechanisms for quitting the EEA. The government has not yet decided which route it will take.

If the government chooses to use article 127 of the EEA treaty, Peretz said, then an act would be required in parliament in the same way that a bill triggering article 50 of the European Union treaty is now going through parliament.

The government has also argued that when the UK leaves the EU it will automatically at the same time leave the EEA. Alternatively, a conference of all the member states of the EEA could be called to renegotiate a new relationship.

A government spokesperson said: “We are glad this attempt to seek a judicial review has been dismissed. As the prime minister has said, we will not be a member of the single market and we will be seeking a broad new partnership with the EU including a bold and ambitious free trade agreement.”

Source: The Guardian