Lawyers to argue that parliament should have a say over whether Britain could remain in European Economic Area

The British government is facing a new legal challenge over whether it should seek to retain membership of the single market during the Brexit process.



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

The group British Influence will use a judicial review to suggest the government could be acting unlawfully if it uses Brexit to also leave the wider European Economic Area – through which non-EU countries such as Norway are inside the single market.

It is the second legal challenge faced by ministers over the process of leaving the EU. The government’s appeal to the recent high court ruling that only parliament has the power to formally trigger Brexit will be heard next week.

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Jonathan Lis, the deputy director of British Influence, 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 with the bath water, but the bath out of the window?”

His group will claim that Croatia provides an example of a country joining the EU and EEA separately, so identifying them as discrete groupings, and will cite research by senior academics on the issue.

“This is not an anti-Brexit measure,” he added.

But the government made clear it did not believe any attempt at a legal challenge would be successful, with Theresa May’s official spokeswoman insisting that Brexit meant leaving both organisations.

“Our position is clear, which is that the UK is only party to the EEA agreement in its capacity as an EU member state and once we leave the European Union we will automatically cease to be a member of the EEA – that is the legal framework,” she said.

A leading authority on European law also poured cold water on the idea. Jean-Claude Piris, a former head of the European council’s legal service, who served as official legal counsel on EU treaties, including Maastricht, Nice and Lisbon, said after Brexit the UK would not remain in the EEA.

“The UK’s withdrawal from EU will mean an automatic cessation of its membership of EEA as an EEA-EU member,” he said. “In order to become an EEA member you have either to be an EU member or an EFTA member.”

Non-EU countries have created the European Free Trade Association to promote economic ties. Current members are Norway, Switzerland, Iceland and Liechtenstein.

The UK was a founding member of EFTA, but left to join the European Community in 1973. Norway has warned it could block any attempt by the UK to rejoin EFTA.

The legal skirmish underscores the mind-boggling complexity of Brexit that will dominate the government’s agenda for years to come.

British Influence, which has written to David Davis, the Brexit secretary, suggests the government should not just be focusing on article 50 of the treaty on European Union, but on articles 127 and 128 of the EEA agreement.

Facebook Twitter Pinterest The group has written to David Davis. Photograph: Steve Back/Barcroft Images

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.”

However, the government and Piris both pointed to another article – 126.

May’s spokeswoman said it represented “the first paragraph on membership in the EEA agreement – that says that it applies to the territories to which the treaty establishing the European Economic Community is applied and under the conditions laid out under that treaty.

“Clearly, if you are leaving the European Union you are coming out of that so it does not apply.”

In theory, the dispute could be resolved by the European court of justice. Instead, she said May was focused on getting Britain the best deal and would do that.