Richard North, 20/07/2016  

As the legal challenge on Article 50 went to the High Court yesterday, counsel for the Government, Jason Coppel QC, told the Court that there was no intention of invoking the Article until next year.

This largely procedural statement thus allowed the Courts some flexibility in scheduling the full hearing, which will now go ahead in October. It does not bind the Government but, if there is a change from that position, Coppel has undertaken that the Court would be given advance notice.

The crux of the case, coordinated by law firm Mishcon de Reya is that Article 50 cannot be invoked without the express permission of Parliament, despite the Government view that invoking the Article is covered by Crown prerogative.

When it comes to the details, there are good arguments countering the Mishcon de Reya case, which doubtless will be heard at length in October – sufficient to justify the generous fees to m'learned friends.

If I was to hazard a guess as to the outcome, however, I would say that their Lordships will find that this is a political matter between the Government (the executive) and Parliament. Parliament is free to use its own powers to bring the executive to check, if it so wishes and, in this event, traditionally, the Courts have been reluctant to intervene.

If Article 50 is to be invoked next year, though, this brings us into the French presidential elections of April-May and the German federal election, the latest date for which is 22 October 2017. It remains to be seen whether either or both Hollande and Merkel will be re-elected but it stands to reason that they will not be fully engaged on Brexit until the elections are over.

But the more substantial point arises in terms of the "common position" which the European Council must agree in order to instruct the Commission on its negotiating mandate. When two of key players may change mid-term, it is difficult to accept that any firm progress can be made until the end of 2017, when the new German federal government has bedded in.

Theoretically, that will leave us with only just over a year to conclude negotiations – or apply for extra time. But it cannot be in the UK's best interests to cram the talks into such a short period, or run them to the wire in the expectation that the EU will agree to extra time without demanding unwelcome concessions.

This is especially the case when we hear further confirmation that the Government has not prepared an exit plan – this time from New Zealand Prime Minister John Key.

Key says he was "quite shocked" to find during his recent trip to the UK and Europe that there is no plan for what Brexit is going to look like. "The most significant takeaway message", he said, "is no one has a clue what it's going to look like", adding: "We were quite shocked, we really thought when we got up there that there would be this plan that we had just missed in the New Zealand media - there is no plan".

Mr Key went on to say that the UK government hasn't done any work on what Brexit will involve and officials were in fact stopped from doing such work.

With the new department of state for exiting the European Union now in the process of being set up, one can only hope that civil servants are trawling through the structures of our relationship with the European Union and the Member States to draw up a basic list of the heads of discussion.

Aside from the trade relationship with the EU, which must be established, there are the "high politics" questions of foreign policy and defence cooperation - as well as justice and home affairs - and then the matter of continued UK participation in EU programmes and agencies.

As I pointed out in my select committee testimony, Brexit has to deal with much more than just trade, an observation which led Pete recently to look at some the EU agencies we will want to continue working with.

One of those, based in London, is the European Medicines Agency (EMA). It began operating in 1995 and is currently responsible for the evaluation, supervision and safety monitoring of medicines developed by pharmaceutical companies for use in the EU.

The UK leaving the EU raises questions as to whether the Agency can continue to be based in London. Even staying in the EEA puts its future in doubt. Efta State EEA members can participate in EU agencies, but they have no voting rights and only limited management rights.

To have such a prestigious EU agency located on the territory of a non-EU member might be difficult to justify, while the prospect of the UK losing voting and management rights would be a huge blow to the UK pharmaceutical industry.

There is a similar problem with the European Defence Agency (EDA), which manages the A400M project, the strategic airlifter which is vital to the RAF's future capabilities. That we would have no voting or management rights in an agency handling this multi-billion pound project would be intolerable.

As of this year, Efta/EEA states participated in 14 EU programmes and 18 agencies, of which 13 were regulatory and five were executive agencies. For the UK, a wider level of participation might be expected, with the terms of participation in each to be established. To secure greater management rights, and any voting rights, would doubtless lead to bitterly-fought and time consuming negotiations.

There would then be the price tags to be determined – calculated on an actual cost basis – as well as the global contribution and any transitional arrangements over the next Multi-Annual Financial Framework (MFF) This will have to deal with, amongst other things, a potential RAL liability, and any unfunded pension liabilities.

Add the problems of negotiating agricultural quotas and related issues, of acquired rights of nationals of other EU Member States living in the UK (and UK citizen rights in EU Member States), and already there are enough issues to keep multiple negotiating teams busy for many years.

This makes it all the more necessary that we should minimise areas of contention, one of the most powerful reasons for remaining in the EEA and an Efta member. This is also, doubtless, the best chance we have of engineering a speedy resolution to freedom of movement question, even if the naysayers are already rehearsing their excuses as to why this will not work.

At least we are seeing a change of heart in the IEA which, having rejected every submission in the Brexit Prize Competition which proposed continued EEA membership, is now telling us that we should be "saving Brexit from the Brexiteers" by supporting the Efta/EEA option, "at least as a short-to-medium-term solution".

Sadly, this clarion call is still vitally necessary, as there is no indication that David Davis is getting close to a position on the EEA. Further more, we have the likes of Martin Howe still briefing against the EEA, with his latest publication making a thoroughly unhelpful contribution to the debate.

Strongly in our favour if we do decide to remain in the EEA, though, is the fact that the negotiations on our trading status within the EEA will not be conducted directly within the framework of the Article 50 negotiations, and nor will the EU, per se, be our negotiating partner.

As I understand it, amendments to the EEA Agreement have to be negotiated under the aegis of the EEA Council – a body with its own distinct legal identity, with its own rules of procedure. Detailed negotiations are conducted with the EEA Joint Committee which in turn has its own rules of procedure.

Any contracting party (i.e., the UK) can call a meeting of the Joint Committee and, of particular utility to the current situation, any negotiations do not depend on Article 50 having been invoked.

If the UK Government can get its act together on this, then any delay in invoking Article 50 – or delays during the negotiations – need not affect progress in agreeing a broader trading framework. Whatever might transpire though, it looks very much as if we are in for the long haul.

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