Article 127: The possible savior from a Hard Brexit

In what was clearly a campaign of misinformation, the British public was mistakingly assured that a vote to leave the EU meant leaving the Single Market, despite the promise in the Conservative manifesto stating otherwise. However, as the Brexit debacle deepens it has become clear that this was not the case. Far from it. Indeed, what Brexiteers have failed to mention is that our membership of the European Union is separate to that of the Single Market. It is not governed by Article 50, but Article 127- a different agreement altogether.

For those not aware of such a caveat, Article 127 derives from the 1994 European Economic Area Agreement. Here, the EU extended Single Market membership to three non-EU nations: Lichtenstein, Iceland, and Norway. As a result, these nations were given access to the free movement of people, goods, and services from a range of other EEA participants.  The United Kingdom, in its own right, is a signatory to this agreement and is also a member of the EU.

In recent months, much debate has surrounded whether the government actually needs to trigger Article 127 to cease membership of the EEA, or as Brexiteers have argued, withdraw automatically under Article 126 (1) of the Agreement. Unlike Article 127, under Article 126 the “Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”

Unsurprisingly, the ambiguity of such legal jargon culminated in a dispute between the UK Government and Single Market Justice (SJM) campaign in 2017. This group has claimed that because the UK is a separate ‘contracting party’ (under Article 127), leaving the European Union does not automatically result in a cessation of EEA membership. As a result, it is viewed that because British EEA membership is enshrined in UK law through Parliament’s 1993 Agreement Act, then triggering Article 127 would require parliamentary approval.

Initially, the government seemed to accept the argument. Upon challenging the Government through the Divisional Court on the topic of Article 127, the SMJ reported that the Government accepted that Article 126 does not “give rise to the termination of the EEA Agreement ipso jure”. Yet, surprisingly, the Department for Exiting the European Union seemed to somewhat u-turn, stating that the EEA Agreement will “no longer be relevant for the UK“, “it will have no practical effect” and therefore “we do not envisage a vote”.

Taking stock of this and our constitutional arrangments, it is clear the UK is indeed a separate ‘contracting party’ to this agreement. This can be seen in the fact that EU membership is enshrined within the 1972 European Community Act, not the 1993 EEA Agreement Act- an entirely separate piece of legislation. With this in mind then enacting Article 127 must require a vote that bears no influence on or link to the Withdrawal Bill.

With the House of Lords adding amendments to keep the UK within the EEA and the desire to stay in the EEA growing due to increasing problems with economic stability and the Irish Border, the legal ramifications of Article 127 could yet keep the UK in the Single Market.

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