England: No ‘legal bar’ to Britain remaining in single market and customs union

A report from the Bar Council’s Brexit working group, seen by The Brief, says there “is no logical or practical necessity for the UK to be a member of either the EU or the EEA in order to be a member of the internal market or the customs union”.

It argues some countries’ opt-outs from the euro and Schengen show it is possible “to be part of the internal market and the customs union without participating in key economic and political elements” of the EU.

Hugh Mercer QC, chair of The Bar Council’s Brexit working 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 jurisdiction in those areas.”

Mr Mercer 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.”

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