UK could legally stay in single market after Brexit, says Bar

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Dec 07, 2017
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Andrew Langdon, QC, said the analysis could help government to manage the competing demands in the Brexit negotiations

Times Photographer Jack Hill

The UK could remain a member of the EU single market and customs union after Brexit, the barristers’ profession has said.

“There is no logical or practical necessity for the UK to be a member of either the EU or the EEA [European Economic Area] in order to be a member of the internal market or the customs union,” the Bar Council’s Brexit working group said in a report published yesterday.

“UK withdrawal from the EU does not form a legal or logical bar to continued memberships of either or both.”

The report points out that both the internal market and the customs union predated the creation of the EU — which came into being on November 1, 1993 — and the EEA.

From the opt-outs that Britain had achieved from the Schengen travel zone and the adoption of the euro, it was clear that other member states “have accepted that it was possible for the UK and member states like Denmark to be part of the internal market and the customs union without participating in key economic and political elements of the developing EU”.

As a matter of law, it would therefore be possible for the UK to pursue a negotiating strategy modelled on the situation that prevailed under the Single European Act before the negotiations that led to Maastricht Treaty and the creation of the EU.

Hugh Mercer, QC, chairman of the council’s group, said: “By building on the legal framework covering the EU’s existing opt-outs, the government could solve some of the most difficult issues in the current talks, while keeping the power to negotiate bilateral deals on agriculture, fisheries, competition, trade and environment, which would end ECJ [European Court of Justice] jurisdiction in those areas.”

He added: “Opting into the internal market and customs union could be negotiated alongside a complete opt-out from the political elements of the EU and an overhaul of the scope and role of the ECJ so far as the UK as concerned.

“The status of its rulings and its jurisdiction would be significantly reduced and much more clearly defined to ensure the sovereignty of the UK parliament.”

Andrew Langdon, QC, the Bar chairman, said the group’s analysis “signposts some of the legal avenues that could help government to manage the competing demands and priorities inherent in the negotiations”.

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