Interview with Adrian Yalland – Co-Founder of Single Market Justice Campaign leading the judicial re

Brexit. 52% of us voted for it. But no one seems to know what it means for us or what it means for the country. Even the Prime Minister does not seem to know or say much other than “Brexit means Brexit” (thanks Theresa). Rather than provide us with any real clarification, the government is focusing on varying the degrees of firmness (hard or soft) and giving Britain’s exit from the EU colours (red, white and blue Brexit). This is potentially leaving us in the dark about the future direction of the country. However, that could all be about to change if Single Market Justice (SMJ) are successful in the judicial review challenge scheduled for the end of January.

Single Market Justice was founded by leave voter Adrian Yalland, a former advisor to the Magna Carta Trust with a keen interest in Parliamentary Sovereignty and the Rule of Law, and remain voter Peter Wilding, who is the Director of pro-single market think tank British Influence as well as being a lawyer, lecturer and historian. Their aim is to challenge the perceived direction of the government towards a ‘Hard Brexit’ (it means Brexit by the way), meaning complete withdrawal from both the EU institutions and from the single market. I met up with Adrian to discuss this further and get his insight into the Brexit process.

You will be surprised to hear that Adrian, going-on 50, is a humble law student like many of you who visit Law Student Help, and has very recently completed his Graduate Diploma in Law. He plans to study the BPTC later this year, with the aim of becoming a barrister working in family, public and international law. He is currently working as a paralegal in a Central London firm to gain valuable legal experience and previously spent twenty five years working as a lobbyist in Westminster before changing fields to follow his passion for the law.

He has a keen interest in public affairs, an aspect that led him to further investigate Brexit. One day, whilst he, and his co-claimant Peter Wilding and a research specialist with an interest in European public policy were reviewing the European Economic Area (EEA) Agreement of 1994 (the treaty behind the single market), that they stumbled upon what is potentially a game-changer in the Brexit process – Article 127, the EEA equivalent of the much discussed Article 50. After further independent research, he then asked colleagues and experts in public and international law to confirm the findings of his research. They did, and agreed with Adrian’s analysis that, contrary to the Government’s position that upon leaving the EU the UK’s rights and obligations under the single market treaty fall away “automatically”, there is in fact a formal mechanism for withdrawing from the treaty (and the single market) which requires primary legislation. After this discovery, Adrian wrote to the government, who unsurprisingly disagreed with him, and he thus decided to launch the Single Market Justice (SMJ) campaign for a judicial review on the subject.

So what is Article 127?

In short, Article 127 of the EEA Agreement is the legal equivalent of Article 50 of Treaty on the Functioning of the European Union (TFEU). Article 127 states:

Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months' notice in writing to the other Contracting Parties.

Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.

The EEA Agreement [1994] was the treaty which created the Single Market as we now recognise it and grants those party to it the famous (or infamous) ‘four freedoms’ of goods, capital, movement, and services, and allows each of these to move freely within the EEA area (the 28 EU countries plus Iceland, Norway, and Liechtenstein) to enable free trade .

In light of this, Adrian and SMJ argued that there are 4 key questions that need to be asked about the Brexit process which could be answered by the Article 127 judicial review; these are:

  1. Do we automatically leave the EEA when we trigger Article 50?

  2. If not, does Article 127 of the EEA apply in requiring us to give formal notification of our intention to leave the single market?

  3. If so, would Parliament need to approve notification to withdraw via primary legislation to repeal the EEA Agreement Act [1993] – the Parliamentary Act which gave the UK Government the power to sign the EEA Agreement [1994]?

  4. What rights and obligations arising under the EEA Agreement would remain after leaving the EU?

Adrian passionately argues that the UK would not automatically leave the EEA once we leave the EU, that Article 127 does apply, and that it is highly likely that Parliament would need to approve any Article 127 notification (if the Miller/dos Santos Supreme Court case is decided in the way that many commentators expect it to be). In regards to remaining rights and obligations, that remains an open question yet to be answered. He also states that, although the Single Market “four freedoms” would still apply to the UK by retaining EEA membership, the powers arising under the EEA Agreement in contrast to the corresponding EU treaties would allow the UK much greater discretion on how they would apply through Article 112, citing the example of Liechtenstein, who have applied an emergency brake on free movement by introducing strict immigration quotas. Speaking to Adrian, he argues that this “is not an exception to the rule, but a precedent that the UK can follow.”

Politically, retaining Single Market access through EEA membership would also represent a significant ace in the pack for the UK during the Brexit negotiations, as well as allowing the UK extra breathing space for negotiating a more detailed trade deal over a longer timeframe, especially when you consider the lack of experienced British trade negotiators that we currently possess as shown in the eviscerating resignation letter of Sir Ivan Rogers, the former UK Ambassador to the EU.

Adrian argues that this option, dismissed by many on the Remain side, was symptomatic of the tone of the argument throughout the campaign:

“The absolute paucity of the referendum campaigns on both sides which resorted to gross exaggerations, distortions and untruths, robbed the country of a chance for a sensible debate. This decision was too important to be made on whipped up passions and fears. This was an absolutely appalling way to conduct a national conversation on such a key issue to the life of the country.”

Adrian further argued that the lack of clarity from Parliament on the EU’s relationship with the UK, and the extent to which the debate was dominated by negative campaigning extremes on both sides (“Project Fear and Project Smear”) of the argument, meant that many voters may not have been fully informed of the issues at stake, and that he estimates that somewhere around 90% of voters are probably of a moderate view on the issue of EU and Single Market membership:

“The UK people have made a historic long term decision to leave the EU, which I am delighted about. But to maximise the considerable benefits Brexit brings, we must have a sustainable, workable Brexit which the whole of the UK can unite behind and which maintains economic stability in Europe, where we forge a future relationship with the continent of Europe based on cooperation and not a thinly veiled hostility.”

So what is the legal argument behind all of this?

Adrian believes that S25(1) of the Constitutional Reform and Governance Act 2010 defines a treaty as (a) a written agreement between States or between States and international organisations, and (b) binding under international law. When the UK signed up to the forerunner to the EU, the European Community (EC) and Parliament passed the European Communities Act 1972, which had the effect of allowing the UK’s accession into the EC. This legislation lists EEA at S1 (2) (m) as a treaty, and not an agreement, despite its title.

As discussed at great length in the recent Miller and dos Santos Supreme Court case, if the Supreme Court decides the case by confirming the verdict of the High Court and stating that an Act of Parliament is required for formal notification of Article 50, this would have the effect of also requiring Parliament to take the same steps for withdrawing from EEA.

Another issue to be considered is whether or not the UK signed the EEA treaty as a contracting party in its own right, rather than simply being members of the single market solely in its capacity as an EU member state. Adrian states that the UK membership of the EEA takes a ‘dualist approach’ in that it is an EEA member state as a contracting party in its own right; and additionally through its present membership of the EU. Once the UK completes Article 50 negotiations and withdraws from the EU, Adrian argues that the UK would remain an EEA member through being a contracting party in its own right. This would enable the UK to remain in the EEA without being a member of the EU until such time as it chooses to withdraw, by triggering article 127.

The government’s argument is that when the UK leaves the EU, it automatically leaves the EEA because of Article 126 of the EEA treaty which states:

The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community (20) is applied and under the conditions laid down in that Treaty….

Adrian believes that the government has misunderstood the intent of Article 126:

“The Government believes Article 126 limits the territory to which the EEA agreement applies and creates a condition precedent for EEA membership, mainly membership of the EU or EFTA. But this misinterprets the use of the word “territory” when compared to how EU treaties are usually worded. Firstly the need for a specific clause on ‘territories’ arose under the EEA Agreement (as under the EU Treaties) because of those Contracting Parties, like the UK, which are diplomatically responsible for territories or dependencies beyond their borders which are otherwise self-governing. Secondly if the Government’s interpretation of the intent of “territory” was correct the word which would have been used would have been “member state”. Thirdly, if leaving the EEA was an automatic condition subsequent to leaving the EU, what is the purpose of article 127 which provides an express formality for withdrawal from the treaty.”

Whilst many perceive the Act of Parliament required for Article 50 to be a mere formality due to the mandate given to it by the referendum result, Adrian argues that there was no such legal mandate for leaving the Single Market and that passing an Act of Parliament for Article 127 notification would be a far trickier task, as it was not the question voted upon by the British people. He tells us:

“Some people believed voting to leave the EU equated to leaving the single market because that is what some politicians said. But other politicians, including Nigel Farage and Dan Hannan MEP, at times stated the exact opposite – so there cannot be any unified view of what people believed they were voting for. It therefore follows that the Government cannot rely on its own mistake in law to assume a popular mandate for hard Brexit exists because the Government cannot know how many would have voted to leave the EU but remain in the EEA if given a chance to indicate that preference. Thirdly, even if every Brexit voter was clear that their vote to leave the EU was a vote to leave the EEA that does not give the Government a mandate to act unlawfully if it’s position on Article 126/127 is wrong.”

Adrian also further argued:

“Until such time as we formally withdraw from the single market treaty, our rights and obligations under the EEA will continue to exist under international law and to frustrate these rights or ignore our obligations would be unlawful under domestic and international law.”

It is not unreasonable to argue that EEA could make an excellent transitional deal whilst more detailed and longer term trade deals are negotiated, and as negotiations on such a deal cannot begin until the UK completes the exit process, which may take around 2 years once commenced. The fact that the Canadian – EU trade agreement (CETA), which some analysts believe to be a good guide to what the UK can expect in the negotiation process, took 5 years to negotiate (and a further 2 years to ratify) means there could be a lengthy period where WTO rules may apply, which would add cost and uncertainty to UK businesses. [Office4] [MO5] Chancellor Phillip Hammond floated this as a potential option in Parliament very recently, so the EEA idea is starting to gain traction.

Adrian and Peter fervently believe that this option could allow the UK to have a win-win Brexit with the EEA at least providing for a good transitional option, and it is undeniable to see the passion and fervour with which they advance their argument. If Adrian and Peter are successful in their judicial review challenge, it may help return just a little bit of reason and calm to the Brexit debate, as well as providing some facts to the post-truth times in which we live.

Let us not forget that it was all brought about by a humble law student just like us.

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