Everything you ever wanted to know about the Article 127 case (but were too afraid to ask)
Brexit's legal fine print is due to be debated in the courts again this week, less than a fortnight after the Supreme Court ruled the government must consult parliament before it can trigger Article 50.
At time of writing, a case on Article 127 is due to go for a merit hearing on Friday afternoon, where judges will decide if there is enough legal meat for a full hearing.
Here's what you need to know:
What's this case about?
The case, which was initially brought by chair of pressure group British Influence Peter Wilding and lobbyist Adrian Yalland, argues Brexit does not automatically spell departure from the European Economic Area (EEA). Instead, this case asserts the government must separately trigger Article 127 of the EEA agreement and, much like the Article 50 case, must also get the thumbs up from MPs before they can do so.
How is this different to the Article 50 case?
The Article 50 case hinged heavily on the constitutional process required for the UK to hand in its notice of withdrawal to the EU, as the UK voted to do on the 23 June. This new case, however, is focused on whether the UK can keep its membership to the EEA.
"The EEA agreement, which came into force in 1994, had the effect of giving to certain non-EU countries the same four freedoms as those available to EU members: the free movement of goods, person, services and capital," explained Michael Madden, partner at Winston & Strawn London. "It created provisions whereby the non-EU countries had to enact similar provisions to those passed in the EU in areas of social policy, consumer protection, environment and company law."
But the Prime Minister has already said we're leaving the Single Market. What does that mean for this case?
As clear as Theresa May's Brexit speech last month was, a political statement is not the same as a legal one. For example, during the Article 50 Supreme Court hearing, lawyers for the government conceded that, although a recent parliamentary vote to stick to the March 2017 deadline for triggering Brexit was "significant", it was not legally "binding".
Surely there's already laws governing this?
Not unlike the Article 50 case, the existing law is unhelpfully quiet about the issues in this case.
"There is no law on this as no country has left the EU since the creation of the EEA and even prior to that the leaving countries were not properly regarded as fully fledged members because they owed their membership through another member – the most recent example being Greenland whose membership derived from its association with Denmark and who left in 1985," added Madden.
Will Brexit be heading to the Supreme Court again in a matter of months?
It's not impossible the case could end up in the Supreme Court but it's unlikely to be any time soon. The Article 50 case's quick scamper up the legal hierarchy was partly thanks to judges deciding the case was allowed to go straight from the High Court to the Supreme Court.
"In the Brexit case it was accepted this was a case of sufficient importance to leapfrog the Court of Appeal and for the appeal to go directly from the High Court to the Supreme Court," said Madden "It is unlikely that a similar approach will be adopted in this case as there is no current urgency to trigger Article 127."
Will this case go to the European Court of Justice?
It's possible, as, Madden explained: "It concerns the interpretation of the treaty (the question being whether an EU Member who has given notice to leave the EU automatically leaves the EEA on the expiry of the notice). The question in the Brexit case was solely on of UK law which is why the final determination belonged to the Supreme Court."
Could this case delay Brexit?
The chances of the UK having the prolong its EU membership because of this case are slim.
"Brexit is all about leaving the EU and everything that entails," Madden said. "The EEA is only one aspect, albeit a very important aspect, of the EU. Brexit can go ahead despite the EEA issue being unresolved."