UK Constitutional Law Association

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Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

Barber-Hickman-KingIn this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament.  Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.

There are a number of overlapping reasons for this. They range from the general to the specific. At the most general, our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and the rights of British citizens that flow from that membership. More specifically, the terms and the object and purpose of the European Communities Act 1972 also support the correctness of the legal position set out above.

The reason why this is so important is not only because Article 50, once triggered, will inevitably fundamentally change our constitutional arrangements, but also because the timing of the issue of any Article 50 declaration has major implications for our bargaining position with other European States, as we will explain.

(i)  Article 50

The relevant provisions of Article 50 read as follows:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

The first point to note about Article 50 is that it is a once-and-for-all decision; there is no turning back once Article 50 has been invoked. If no acceptable withdrawal agreement has been reached after two years, the exiting Member State is left without any deal with the EU.  It is of course possible to extend the time period. But this is in the gift of the EU Council and requires its unanimous agreement.

It may be argued that implicit within paragraphs 2 and 3 is a right for the member state to revoke the notice to withdraw.  Yet this argument depends on reading such a right into a text from which it is conspicuously absent.  That text clearly provides that only the terms of withdrawal itself are negotiable and states that if agreement is not reached then the Treaties cease to apply to the State concerned. The point is however probably moot since the UK must trigger Article 50 expecting and intending to exit the EU. And it could not safely assume that it is able to withdraw notification on the basis of the terms of Article 50.

Article 50 therefore tips the balance of negotiating power massively in favour of the remaining EU States. The UK has far more to lose from withdrawing from the EU with no deal in place than has the EU. Whilst the EU does want access to the UK market, it knows that the UK will be in a very weak bargaining position during withdrawal negotiations, with extremely dire consequences for the UK economy if it were to leave without any deal. This is likely to limit the UK’s negotiating position in relation to key aspects of the exit deal.

The question of how an Article 50 notification can be given is consequently of paramount importance.  Unfortunately, this is less clear than it might first appear.  The first paragraph of Article 50 specifies that the decision to leave the Union, which must be made before the Article 50 declaration, must be made in ‘accordance with its own constitutional requirements’ – but what are these requirements in the British system?

(ii) The Domestic Constitutional Requirements For an Article 50 Declaration

In his resignation speech, David Cameron said:

“A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.”

The Prime Minster did not specify the legal authority under which he believed he or his successors might invoke Article 50, but the typical answer will be obvious to constitutional lawyers: it is the royal prerogative, a collection of executive powers held by the Crown since medieval times, that exist unsupported by statute.  The Prerogative is widely used in foreign affairs, which Parliament has largely left in the hands of the Government. The treaty-making prerogative of the Crown is one such area.

If the Prime Minister is correct, and the Prerogative is the basis for the declaration, he enjoys complete discretion about when to issue the declaration: the trigger could be pulled in October, next year, or in ten years’ time.

The relationship between statute and the prerogative has long been contentious, and up until quite recently – the 1980s – it was arguable that the exercise of prerogative powers (though not their existence) was beyond the capacity of the court to review; the King could do no wrong.  Whilst the courts might not have been able to review its exercise, they certainly could and did rule on whether the prerogative contended for by the Crown existed in the first place.  One of the earliest limits on the prerogative was that it could not be used to undermine statutes; where the two are in tension, statute beats prerogative.  In one of the seminal cases of the common law, The Case of Proclamations, (1610) 12 Co. Rep. 74 Sir Edward Coke declared:

  “..the King by his proclamation… cannot change any part of the common law, or statute law, or the customs of the realm…”

A more recent statement of this principle can be found in the Fire Brigades Union Case [1995] 2 AC 513 in 1995, where Lord Browne-Wilkinson stated that:

“…it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to continue with the statutory scheme…”

This case law forms a core part of the separation of powers in the British Constitution: the Government cannot take away rights given by Parliament and it cannot undermine a statute.   For the courts to hold otherwise would place the rights of British citizens at the mercy of the Government and would be contrary to Parliamentary supremacy.

Admittedly, and with most aspects of our constitutional law, the precise ambit of the principle invoked in the Fire Brigades Union case, and in associated case law, is open to different interpretations. A narrow one would limit its application to situations where the statute proscribes in detail how Government must act, but where the Government circumvents that guidance by recourse to the prerogative. The wider principle is that it is not open to Government to turn a statute into what is in substance a dead letter by exercise of the prerogative powers; and that it is not open to the Government to act in a way which cuts across the object and purpose of an existing statute. In our view the wider principle correctly states the law and is particularly apt here, as we are concerned with a constitutional statute upon which an extensive system of rights is founded.

This argument does not entail that the Government can never withdraw from an incorporated treaty. Everything depends on the terms, object and purpose of the statute in question. The Human Rights Act 1998, for instance, incorporates the European Convention on Human Rights in a very different way.

(iii) The Consequences for Article 50

As we have seen, the purpose of a Member State embarking on the Article 50 process is to withdraw from the EU. The EU Treaties “cease to apply“ to the UK immediately upon either, (i) the entry into force of the concluded agreement, or (ii) the expiry of the two year guillotine (subject to unanimous agreement to extend). Can such a decision be made by the Government alone, even following a referendum?

First, the European Communities Act 1972 is, as its long title states, an Act “to make provision for the enlargement of the European Communities to include the United Kingdom”. The long title of the Act is a permissible aid to interpreting the terms, and object and purpose of the Act.

Section 2 then provides that all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties are part of UK law.

The obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect in domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory. Once a withdrawal agreement took effect, or if not deal was reached, the 1972 Act would be left as a dead letter. It would instruct judges  to apply the Treaties which themselves declare they had “ceased to apply” to the UK. Indeed, there would not be any need for Parliament to repeal the 1972 Act once the Article 50 process was completed because there would be no remaining rights and obligations for the UK under the terms of the EU Treaties.

It is not an answer to say that section 2 refers to rights and liabilities “from time to time arising” under the Treaties because this is obviously intended to cater for the changing rights and obligations of the UK under EU law, such as to comply with EU legislation, within the EU. It does not allow the Government to do an act which would resulting the withdrawal from the EU Treaties, which cuts across the whole object and purpose of the 1972 Act, which is to make the UK part of the EU.

Some might argue that there would be no such conflict since the 1972 Act does not regulate the process of withdrawal, and because the executive act of withdrawal leaves the statute formally untouched.  However this would be a very formalistic analysis in circumstances where the undoubted intention of the UK in triggering the Article 50 process would be to effect the opposite of that which the 1972 Act is designed to achieve.

By issuing an Article 50 declaration, the Prime Minister would start the process that would inevitably end in the loss of EU rights (even if a way was found to negotiate a set of substitute, non-Treaty rights).

Secondly, if this were not sufficient, the Article 50 declaration will strip British citizens of their rights in relation to the European Parliament.  The European Parliamentary Elections Act 2002 confers a right to vote and to stand in European elections.   The Government cannot unilaterally do an act which will render the 2002 Act nugatory and strip away the rights that it confers.

More examples could be given, but the general point is plain.  Our membership of the European Union has conferred a host of legal rights on British citizens, some through incorporating statutes, some granted directly in domestic law.  Applying the common law principle found in The Case of Proclamations and Fire Brigades Union, the Government cannot remove or nullify these rights without parliamentary approval.  Its prerogative power cannot be used to overturn statutory rights.   Statute beats prerogative.

This has significance not only in terms of our domestic law, but also for EU law. Article 50 specifies that a decision to leave the European Union must be made in conformity to a Member State’s constitutional requirements.  If the Prime Minister sought to issue an Article 50 without parliamentary approval, it would not satisfy this test; it would not be effective in European Law.

(iv) The Role of Parliament

It might be thought that this gives rise to something of a constitutional chicken and egg dilemma: how can Parliament legislate to take the UK out of the EU before the exit negotiations are complete? There is in fact a straightforward answer to this apparent conundrum. Before an Article 50 declaration can be issued, Parliament must enact a statute empowering or requiring the Prime Minister to issue notice under Article 50 of the Treaty of Lisbon, and empowering the Government to make such changes to statutes as are necessary to bring about our exit from the European Union.

Is this a mere formality? The political reality might be “yes”. Parliament might consider that following the referendum it must pass a statute in these terms. But the answer in constitutional terms is “no”. As a matter of constitutional law, Parliament is not bound to follow the results of the Brexit referendum when deliberating this legislation. A number of options are constitutionally open to Parliament.

First, it could decide not to grant this power at all.  As some of the core claims made by the leave campaign unravel, Parliament might decide that the case for Brexit has not been made – or was gained under a false prospectus.  As Edmund Burke taught us, ours is a representative, not a direct, democracy.  Those representatives whose consciences required them to reject the referendum vote would have to justify themselves to their electorates at the next General Election – an event that is likely to arrive quite soon.  We should make clear that we take no position as to whether Parliament should adopt such a course, but it is undoubtedly open to Parliament as a matter of constitutional law. Parliament is, after all, sovereign.

Secondly, Parliament could conclude that it would be contrary to the national interest to invoke Article 50 whilst it is in the dark about what the key essentials of the new relationship with the EU are going to be, and without knowing what terms the EU is going to offer. Parliament might well conclude that to require the Government to issue the notice immediately would be contrary to the national interest, even if Parliament is committed to leaving the EU, because the legal structure of Article 50 would place the UK at a seriously disadvantageous position in negotiating acceptable terms. Surely, Parliament is unlikely to require the Government to issue notice under Article 50 if it considers that the Government might be forced to accept exit terms which do not protect key aspects of our economy. Parliament may therefore require the Government to engage in extensive informal negotiations or even to seek to negotiate exit from the EU by formal Treaty amendments rather than through the Article 50 process.

If the UK seeks to obtain some form of framework agreement on key terms before invoking Article 50, once these terms are in place, Parliament could then trigger the Article 50 procedure to effect exit, perhaps with only details left to negotiate by the Government.  Immediately upon an agreement being finalised the UK would no longer be part of the EU. This option would comply with the outcome of the referendum.

Finally, of course, Parliament could decide to authorize notice under Article 50 at once by empowering the Prime Minister to issue the declaration.

There are very good reasons for involving Parliament. With its broad range of representatives and peers, various pertinent committees with extensive evidence gathering powers, it is an institution that has the expertise and legitimacy to discuss the implications of various withdrawal options and any framework conditions or further approvals that Parliament may want to stipulate. The referendum was silent on the terms of withdrawal. Such terms should be matters for cross-party discussion in open Parliament rather than among the front bench of a (divided) single party in closed Cabinet meetings.


Far from being a straightforward and streamlined process of exit, the Article 50 process raises very complicated legal and political issues and is pregnant with risk (additional to those inherent in existing outside the EU). These complexities are compounded by the murky ambiguities of our unwritten constitution.

The referendum result itself does not speak to the question of how the UK should leave the EU. It is up to the Government and to Parliament to ensure that the exit is managed consistently with the UK’s national interest.

Our analysis leads to the possibility that the process of extraction from the EU could be a very long one indeed, potentially even taking many years to come about. Of course, the EU Member States have made clear that they will only negotiate once the Article 50 exit provisions have been triggered and are pressing the UK to pull the trigger “as soon as possible”. It is also clear that uncertainty is itself undesirable. But uncertainty needs to be weighed against other imperatives, such as the need to comply with the UK’s constitutional requirements and the need to ensure that Brexit is effected consistently with the national interest. A quick pull of the Article 50 trigger is unlikely to be feasible under the UK’s constitutional arrangements and may well not be desirable for any UK Government or Parliament, even one committed to eventual withdrawal from the EU.

Brexit is the most important decision that has faced the United Kingdom in a generation and it has massive constitutional and economic ramifications. In our constitution, Parliament gets to make this decision, not the Prime Minister.

Nick Barber, Fellow, Trinity College Oxford.

Tom Hickman, Reader, UCL and barrister at Blackstone Chambers

Jeff King, Senior Lecturer in Law, UCL

(Suggested citation: N. Barber, T. Hickman and J. King, ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’, U.K. Const. L. Blog (27th Jun 2016) (available at

580 comments on “Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

  1. Gavin Phillipson
    June 27, 2016

    Excellent and timely analysis. I would add only one small point, which if I have time over the next few days, I might flesh out into a blogpost. In the above, the authors say: ‘The Prerogative is widely used in foreign affairs, which Parliament has largely left in the hands of the Government. The treaty-making prerogative of the Crown is one such area.’ I would just like to draw attention here to the provisions of Part II of the Constitutional Reform and Governance Act 2010 which give Parliament a (highly qualified) right to give or refuse consent to the ratification of Treaties:

    Since the end result of the Article 50 negotiations would presumably be a treaty, or series of Treaties, that would at least prima facie require approval by Parliament under the 2010 Act, this I think reinforces the authors’ argument that Parliament should give prior approval both to the triggering of the Art 50 process and to the (future) Government’s negotiating stance – in particular its position on the Single Market. There is after all no point in the Government negotiating a deal with the EU that Parliament will then reject.

    • Richard Vaillancourt
      June 27, 2016

      What bothers me is that none of the leading players have mentioned the fact that there has to be an act of parliament in place before invocation. Are they still trying to bamboozle us plebes? I have commented on this in a previous post and I’m no lawyer! I was delighted to come across this article. Maybe saner heads will prevail. Let’s hope so.

      • Hamish Macphail
        June 29, 2016

        The whole point of the article is aimed at establishing whether there has to be an act of parliament prior to invoking article 50 or not. The authors conclude that there should be, but it is not an established fact.

    • “Politicians have repeatedly stressed that there was “no going back”if the British people voted to back Brexit in the referendum.” Why? I offer the following:

      An ‘Advisory Referendum’ cannot be received, or treated, as a win or lose ‘binary’ referendum. An Advisory Referendum can produce more than one result, as determined demographically, and these results must be considered by Parliament for debate, together with the outcome of the referendum as a whole, margins and numbers of votes cast. To do otherwise is to act with criminal neglect with respect to the electorate’s advice. Parliament cannot prejudge the advisory, but is required to debate it before deciding upon the best course of action, as judged by Her Majesty’s MP’s to be in the best interests of the nation. With respect to an Advisory Referendum, therefore, it is illegal for HM Government to decide beforehand on a course of action on the basis of majority vote alone, as though the referendum were ‘Binary’.Consequently, it is also illegal for HM Government to act upon the outcome of a referendum without the requirement of a Parliamentary debate that calls for a vote or votes with respect to questions raised from an Advisory Referendum’s results.

      The less than 4% victory for Brexit is like saying: The nation, at this time,after being bombarded with slogans, spin and ‘some’ facts, believes that thereis a slight possibility that leaving might be better for Britain. While the 28%who chose not to vote are saying to Parliament: “What do you think?”

      The nation has democratically presented its advice to Parliament. – Parliament is legally bound ‘to receive’ that advice – however slight and ill-informed.But, is ‘not’ bound to take it. It is wrong to ignore the advice of the 48% of the electorate of the UK, including demographically the advice of Scotland,Northern Ireland and Gibraltar, who advised the opposite. All advice needs to be taken into consideration for the sake of the UK’s future, not just that of a slight majority at the time of the referendum.

      There should in my view be a legal challenge.

      Geoffrey Robertson QC, makes the legal and democratic obligation of Parliament very clear.

      • Richard Tetlow
        June 30, 2016

        Great news to open the debate widely, but where are the Press and BBC etc in all this? On the face of it, it is a crazy constitutional situation if the PM can both make a decision to have a referendum and then be responsible for accepting it. What of our hundreds of years of constitutional history! He is not the government or parliament. What a mess but is to be urgently clarified.

      • Laurence Coventry
        June 30, 2016

        The result was not as large as the majority for Scotland staying in the UK. However it is just as convincing as Obama’s victories over McCain and Romney. If you want different parameters these need to be put in place in advance, not like the EU with Ireland and the EU constitution because you don’t like the result post hoc facto.

        I am thankful we are going out because the German words for EEC were from Hitler in 1943 and the technocratic work was done by the bright university sparks of Vichy.These I have read ,were taken over holus bolus by Monnet after the war, as to plan and personnel. Heil Juncker!

        Perhaps overriding all the interesting discussion is the letter available as “Kilmuir letter to Heath” on Google, laying out the Lord Chancellor’s stringent multi point definitions of treason. It could be held that the European Communities act of 1972 was treasonous, being an impermissible abrogation of sovereignty.

      • Lee Moore
        July 3, 2016

        The referendum is relevant to the politics, it is perfectly irrelevant to the legal question. The question legal is – can the Cabinet authorise a Minister to send the appropriate Article 50 notice in, without consulting Parliament ? Or rather, if that’s what happens, can anyone go to court and get a judgment saying the notice is invalid ? All the rest is smoke.

      • James Stead
        July 7, 2016

        Here, here, I can only concur!

      • Susan Gooch
        July 19, 2016

        This was not an Advisory referendum… The government, foreign secretary said “let the people decide” and they have!

      • AS
        July 19, 2016

        “This was not an advisory referendum” – what are you basing that on? Or have you just decided you’re going to rewrite UK law Susan?

      • Solange Lebourg
        July 20, 2016

        What have the Scottish People decided? What have the Northern Irish People decided? What was decided by all of the all of the other People, the 63% of People, who did not agree with you? In our representative democracy, these People matter, too.

      • Marvin
        July 21, 2016

        The EU referendum attracted the greatest number of votes ever. Taking into account that N.Ireland and central London have vested interests in the EU, and that the media and Government in Gibraltar was heavily biased (I read the Gibraltar newspapers) – this would indicate that a far larger number of the electorate were in favour of Brexit. Those in favour of remain, after following all the social media on the topic – appeared not to have understood marketing evolution. The EU with it’s ill advised grant awards served to block the ever changing markets as opposed to adapting to market needs. In turn, this encouraged even more unemployment. Unemployed labour is a loss to potential financial gains! The electorate had waited long enough for the changes within the EU, that were never to materialise.

      • Sean Kenrick
        November 5, 2016

        I believe you are mistaken. The government did not have to go to the public in the first place and as per their prerogative can enter treaty negotiations with any country without parliaments backing. Only after they have come to an agreement can parliament ratify it or not.

    • Rodney Atkinson
      July 11, 2016

      This is all complete rubbish. Parliament never approved of the Accession Treaty to the EU and Hurd rightly said that parliament could not overturn the Maastricht Treaty. That is because they were signed – illegally in fact on precedent – under Crown Prerogative Powers granted to Ministers. Now we wish to leave the same process in reverse must be instigated. In fact we could have long ago rescinded these treaties under the many corruptions and illegalities recognised by the Vienna Convention on the Law of Treaties as justification for so doing. See my article on

      And there is no need for any trade agreement or other treaties when we leave. We will trade initially under the minimum tariffs paid by other non EU members – producing a massive saving over the costs of budget contributions, regulatory costs, trade manipulation and fraud costs of EU membership.

      The sovereigns have spoken. Those who alienated their sovereignty are defeated. Those who used one mechanism to destroy our sovereignty cannot now demand a more complicated one before they do our democratic bidding.

      • PeterH
        October 12, 2016

        Actually, so far as I understand it, it was ratified by parliament and could not have passed into law without that ratification. Our official membership started post that ratification.

        The same would I believe apply to any use of Royal Prerogative to leave the EU. It would surely require parliament to ratify it for it to pass into legal effect?

    • Sean Kenrick
      November 5, 2016

      I totally disagree with your prognosis of Part II of the Constitutional Reform and Governance Act 2010. Ratification, is an ascent to a treaty that has already been made. In this instance, article 50 was de facto agreed upon it Treaty of European Union 1972. Therefor, this is purely a prerogative matter for the government. It is not until an agreement (treaty), on exit has been made, can parliament ratify that treaty

  2. Tom Austin
    June 27, 2016

    This all looks eerily like sophistry to me – I mean this in a positive way.

    How should the final paragraph be read, when the initial folly is considered.

    What constitutional construct gave Cameron the power to declare – late in the game, that our government would accept the referendum result as binding?

    What is ‘lawful’ in setting up a friendly kick about only to declare before the final whistle that the winning team is the winner of a cup-competition that was never run?

    Surely, there is a mechanism to prevent such unilateral ‘monarchical’ rule-changes?
    If the referendum was commenced with the understanding that its result would be binding, would there not have been more note taken of the misleading claims by either side?
    Would there not have been an onus upon ‘Vote Leave’ to offer concrete proposals; manifesto style?

    How can ‘we’ claim to knowing what procedure is to be followed now, without first expanding on the constitutionality and legality of the mid-game rule change?

    At the very least, this mood-measure via referendum should have been laid before Parliament for the decision about how to proceed to be made.

    • Tim
      June 28, 2016

      “What constitutional construct gave Cameron the power to declare – late in the game, that our government would accept the referendum result as binding?”

      -> He has certainly accepted it as binding on his Government, but that is not the same thing as it being binding on Parliament. Which is why the constitutional law point of whether HM Government can invoke Art. 50 without any further vote in Parliament is not just sophistry.

      On the other hand, probably far more important than constitutional law is the politics. Whether HM Government commands, and will continue to command, the necessary parliamentary majority to win any such vote or confidence motion is not yet known. Nor is whether, in the current febrile climate, a future Prime Minister will choose to associate his or her name with the invoking of Art. 50 and the precipitation of his/her negotiating team into a very weak position with the EU negotiators without further political cover for doing so.

      • Tom Austin
        June 28, 2016

        Well, it strikes me that if Cameron’s declaration that the referendum result would be binding on his Government has no lawful basis, then arguing about how to act in accordance with this ‘improper’ move is arguing from a false premise – i.e. sophism: “A plausible but fallacious argument. ”
        I am not trying to insult anybody. I’m simply nonplussed as to how it can be lawful to change the rules once the games’ afoot.

      • David Jeremiah
        June 29, 2016

        One may argue that many things David Cameron said during the referendum campaign were never intended by the Prime Minister to be regarded as being legally binding or binding in any other respect, for that matter. HIs repeated assertion that, in the event of a vote to leave, he would go to Brussels on the Friday June 24 and invoke article 50 is just one thing that springs to mind…….

      • richard jarman
        June 29, 2016

        Politicians say things, as does everyone, that they wish to happen or may happen or things they intend to do.
        Some things, buying a house , making laws etc require something lse in this case procedure in accord with law; which presently has been expressley not the case; read the threads above!

  3. Alessandra Asteriti
    June 27, 2016

    In a Commons debate on 25 February 2016, following a question from Alex Salmond MP, which was phrased as follows

    The Foreign Secretary invokes article 50. Before notification was given under article 50, given that the referendum is an advisory one in terms of the constitution, would there be a vote in Parliament? Would there also be a vote in the Scottish Parliament, given the impact on devolved competencies under the Sewel convention?

    Mr Philip Hammond, Secretary of State for Foreign Affairs, stated as follows:

    The Government’s position is that the referendum is an advisory one, but the Government will regard themselves as being bound by the decision of the referendum and will proceed with serving an article 50 notice. My understanding is that that is a matter for the Government of the United Kingdom, but if there are any consequential considerations, they will be dealt with in accordance with the proper constitutional arrangements that have been laid down.

    In reply to another question in the course of the same debate, Mr Hammond also added,

    The propositions on the ballot paper are clear, and I want to be equally clear today. Leave means leave, and a vote to leave will trigger a notice under article 50. To do otherwise in the event of a vote to leave would represent a complete disregard of the will of the people. No individual, no matter how charismatic or prominent, has the right or the power to redefine unilaterally the meaning of the question on the ballot paper.

    No issues of constitutional role of the parliament, and necessity of a parliamentary vote, were raised, either inside or outside of the Commons, with the exception of the apposite question by Mr Salmond. May I suggest that there has been a systemic failure to examine the implications of the vote both inside and outside the Commons?

    • Tom Austin
      June 27, 2016

      Thank you for that.
      I am still troubled by the absence of any and all responsibility for the veracity of claim and counterclaim, and the lack of policy planning for a post-Brexit result.
      “To do otherwise in the event of a vote to leave would represent a complete disregard of the will of the people.”
      How can any such ‘will’ be measured in the absence of reasoned argument?

      • Alessandra Asteriti
        June 27, 2016

        Having predicted the result of this referendum, I argued, but not publicly unfortunately, that an involvment of parliament, while legally correct and potentially required (noting that the crux of the argument is that article 50 does not allow for withdrawing the withdrawal notice, as it were, and that this, while possibly to be deduced from the text, is not crystal clear and might require a referral to the CJEU) would be political suicide. As both sides in the Commons seem to have committed suicide already, the time might have come for the Commons to be involved, and vote against invoking article 50.

      • Tom Austin
        June 27, 2016

        Yes. I have argued since Friday morning that it would be just as easy to ‘disappoint’ 52% as it is the 48%.
        Especially as many of the ‘planks’ of the Brexit stance have been rowed-back upon.
        IF?!! If the referendum were to be re-run with this clearer understanding of the ‘non-sense’ of Brexit positions its likely the outcome would be different.
        While I don’t advocate this, it is becoming clearer that many Breixit voters are having second thoughts.

    • Tim Bradshaw
      June 27, 2016

      Thank you for reprinting this Alessandra. It is yet another of those dished out before the result, which should cause contrition and a substantive response from those who made them. Politically, it should be dynamite for Mr Hammond, and the wider Government. Like so much in this argument, however, it does not in any way change the constitutional position regarding Article 50. We shall have to rely, it seems, on Oliver Letwin to find a typically British get-out clause instead.

      • Alessandra Asteriti
        June 27, 2016

        Leaving aside domestic constitutional questions, on which I am absolutely no expert, I would have thought that a statement in the Commons such as the one offered by Mr Hammond in February might effectively estop the government from now claiming that its own constitutional requirements demand a vote in parliament before article 50 can be invoked as a matter of international/EU law.

    • alrich
      June 28, 2016

      Not sure your estoppel point works. Nobody, presumably, has suffered loss as a result of relying on Hammond’s statement. It won’t have prompted more people to vote Leave.

      If he had made the statement when the Commons was considering the bill ie before the Referendum Act was passed, the statement might have some legal force as clarifying ambiguity in the Act and making clear the intention of the Act (under the Pepper v Hart doctrine). But he didn’t.

      It was in February: 25 Feb 2016 : Column 498

      As such it would be embarrassing for him to renege on it but no more. Arguably, if Parliament had wanted the final say on Article 50 it should have made that clear itself by including words in the Act to that effect (a point made by Denis Cooper elsewhere in these comments).

      Without such words it is not necessarily unreasonable to believe that Parliament intended whatever the contingent result of the referendum turned out to be. In which case it would need neither a Prime Minister with a Royal Prerogative nor a further parliamentary seal of approval – just a messenger with some small authority to nip over the Channel to inform the European Council of the decision.

      On the other hand, Parliament could stop the whole process now by passing a quick Bill before the message is sent – if it dared.

      • Alessandra Asteriti
        June 28, 2016

        I meant that Cameron might not be able to rely on the UK constitutional structure to argue at the EU level that the UK is not in the position to invoke article 50 without a vote in parliament and I think that there might be some form of detrimental reliance on the part of the EU and its member states that the UK would start the process expediticiously, and that damage both political and actual economic damage, would be resulting from the continuing situation of uncertainty following failure to invoke the article and get the process and the timing of withdrawal on firmer grounds.

      • Alessandra Asteriti
        June 28, 2016

        To be clear, I am talking about the international law doctrine of estoppel.

    • Graham Watts
      August 24, 2016

      Fact is, the power of any Government is secured ONLY on the will of the voting public. To all those who question the legitimacy of the EU Referendum, please tell us, whether the 1975 Referendum is questionable also?

      • richard jarman
        August 27, 2016

        No it could have been challenged politically; what the legal situation was then I cannot recall, but laws change.

        The nonesense about all this is that people are just as entitled to try to reverse Brexit as orthers were to encourage it.

        We have a representative government. It is not delegated…and is subject only to the ballot box…other than any constitutional supremacy.. .. here you may find entrenched provisions such that NI Irish & maybe Scottish governments are to remain subject to some, at least, of the EU treaties… We gave away constitutional power…taking it back is force majeure?

        Oh yes! even outside the EU mass deportation is against international law- with a little luck all the Bulgarians & Romainians will come here now, leaving those countries empty, and then vote us back into the EU

      • G
        August 31, 2016

        “The nonesense about all this is that people are just as entitled to try to reverse Brexit as orthers were to encourage it.” You conveniently forget the important phase that took place after those exchanges. Perhaps you were out of this Solar System at the time.

    • Richard Allen
      September 4, 2016

      No surprise there…potatoes the lot of them

    • Sean Feeney
      October 1, 2016

      The European Union Bill received Royal Assent on 17 December 2015, prior to the statement on 25 February 2016 relied on by Alessandra Asteriti to evidence the Pepper v Hart reading that the 2015 Act is “advisory”.

      This statement is therefore of little relevance (even if it were to be admissible in evidence), in a Pepper v Hart reading, compared to any clear statement by a Government proposer made during the Bill’s passage at, say, second reading in the Commons.

      The ratio of Pepper v Hart is that reference to Parliamentary material is permitted as an aid to the construction of legislation which is ambiguous, or obscure or the literal meaning of which leads to an absurdity.

      The judgment made it clear weight should only be given to clear statements in Parliament by a Bill’s proposer prior to its enactment, if there was a need to justify admission, as possible evidence (to be interpreted and weighed by Judges) of the purpose of the legislation.

      At the second reading of the European Union Referendum Bill in the House of Commons, the then Secretary of State for for Foreign and Commonwealth Affairs (Mr Philip Hammond) moved the Bill by what I believe is the clearest possible statement that the statutory purpose of the Bill was to make the British people the statutory decision-maker on on whether the UK should leave the EU:

      “This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.”

      Hansard 9 Jun 2015 : Column 1047

      Any lingering doubt should be dispelled byMr Hammond’s identification in his concluding remarks of who, as Government proposer, he intended would take the “decison”:

      “But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber.”
      Hansard 9 Jun 2015 : Column 1052

      For the ratio of Pepper v Hart see, for example, the speech of Lord Bridge of Harwhich :

      “It should, in my opinion, only be in the rare cases where the very issue of interpretation which the courts are called on to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the courts.”

      Lord Griffiths:

      “My Lords, I have long thought that the time had come to change the self-imposed judicial rule that forbade any reference to the legislative history of an enactment as an aid to its interpretation. The ever increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament? I have had the advantage of reading the speech of Lord Browne-Wilkinson and save on the construction of the Act, without recourse to Hansard, I agree with all he has to say. In summary, I agree that the courts should have recourse to Hansard in the circumstances and to the extent he proposes. I agree that the use of Hansard as an aid to assist the court to give effect to the true intention of Parliament is not “questioning” within the meaning of article 9 of the Bill of Rights. I agree that the House is not inhibited by any Parliamentary privilege in deciding this appeal.”

      Lord Oliver of Aylmerton:

      “It is, however, important to stress the limits within which such a relaxation is permissible and which are set out in the speech of my noble and learned friend. It can apply only where the expression of the legislative intention is genuinely ambiguous or obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty can be resolved by a clear statement directed to the matter in issue.”

      Or, of course, the speech of Lord Browne-Wilkinson:

      “In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.

      “If, as I think, significance should only be attached to the clear statements made by a Minister or other promoter of the Bill, the difficulty of knowing what weight to attach to such statements is not overwhelming. In the present case, there were numerous statements of view by members in the course of the debate which plainly do not throw any light on the true construction of section 63. What is persuasive in this case is a consistent series of answers given by the Minister, after opportunities for taking advice from his officials, all of which point the same way and which were not withdrawn or varied prior to the enactment of the Bill.

      “Accordingly in my judgment the use of clear ministerial statements by the court as a guide to the construction of ambiguous legislation would not contravene article 9. No doubt all judges will be astute to ensure that counsel does not in any way impugn or criticise the Minister’s statements or his reasoning.”

  4. Petru Hobincu
    June 27, 2016

    Lisbon Treaty “Article 10 (1) The functioning of the Union shall be founded on representative democracy. (2) Citizens are directly represented at Union level in the European Parliament.” The functioning of EU and consequently, the representation is over all a Parliament activity. In my opinion only the Parliament may entitle the Government to apply or not, the results of social consultative results of referendum.

    I quote from this article (

    “EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.”

    In conclusion, the Parliament and the Government in this order and in their legal attempt to trigger or not art 50, should comply with, still applicable, EU law.

  5. Stephen Laws
    June 27, 2016

    Good stuff. I am not sure that I am wholly convinced that an Article 50 notice would be reviewable or invalid in domestic or EU law if served without Parliamentary sanction; but this has certainly convinced me that it would be constitutionally highly inappropriate – and certainly politically very unwise – for an Article 50 notice to be given without there having been a commitment from Parliament, preferably in an Act, either to the actual terms of exit or to the grant of a power for the Government to implement whatever terms of exit are eventually agreed.

    The 1910 precedent perhaps suggests that the passing of such an Act would best follow an election in which its contents and any restrictions in it were the main issue, not least to ease its passage through the House of Lords.

    June 27, 2016

    I agree broadly with this analysis. The EU Referendum Act 2015 lays down no constitutional or legal consequences of the vote. If ministers now seek to use the prerogative treaty power to operate Art. 50, it seems arguable that they can be stopped by court order from frustrating or bypassing domestic legislation predicated on EU membership. Only Parliament can authorise this, and its members are constitutionally bound to vote according to conscience and not to mandate.

    Is any move being made to institute (and no doubt to crowd-fund) proceedings? The Public Law Project comes to mind.

    • Rosemary Mulley
      June 27, 2016

      I would support such a crowd-funding.

      • Barry Goddard
        June 28, 2016

        Me too wher do I send it?

      • Bob keen
        June 29, 2016

        I second that, when do we start?

    • Kieron Beal QC
      June 29, 2016

      A number of EU practitioners are currently looking very seriously at the issues raised here. If (and at the moment it is only if) litigation is in contemplation, it would be good to find out if there was broad support for the views expressed above within the realms of other former members of the Judiciary and experts in constitutional law. Please do let me know if anyone would be interested in becoming associated with any such endeavour.

      • Rosemary Mulley
        June 29, 2016

        Litigation is in contemplation – please see above for a link to the crowdfunding proposal.

    • Tom Austin
      June 29, 2016

      An idea of this sort could find wide appeal (npi), and a trickle of funding could turn into a flood, but how would such a thing begin and how would the news of it be spread?
      (I’m not laying any onus on you Stephen.)

      • Jolyon Maugham
        June 30, 2016

        There has already been some money crowd-funded. You can read about it here: We have instructed John Ha

      • Jolyon Maugham
        June 30, 2016

        Some money has already been crowd-funded. You can read about it here: We have instructed John Halford of Bindmans LLP and hope to make an encouraging announcement about Counsel later today. The best places to keep abreast of developments on this are at or on twitter (@jolyonmaugham) where, apologies in advance, you will receive a regular but varied diet.

      • Tom Austin
        June 30, 2016

        Thank you Jolyon, that is exactly what I was looking for, and I trust that the others here that wished to help get to hear this news.

    • Guillaume McLaughlin
      June 29, 2016

      Parliament is indeed sovereign and was sovereign when it passed the referendum bill which essentially cut it out of the decision on continued UK membership of the EU. It should have used its statutory rights to establish a procedure for control of transmission of the result. It didn’t. And furthermore by agreeing to the holding of a referendum is has relinquished its representative quality. So the government is obligated to transmit to the EU the result of the referendum. It is already a great improvement on previous treaties that article 50 provides for a negotiated exit. Previous treaties had no such provisions so on notification of the outcome of the referendum the treaties would have been considered unilaterally repudiated according to Vienna convention.

      • Solange Lebourg
        June 30, 2016

        The referendum result is not binding in law.

    • John Andrews
      June 29, 2016

      Why would such work not be on an entirely or largely pro bono basis. After all suitably expert lawyers stand to achieve very substantial fee income in advising the major funder parties.

      • Robert Andrews
        July 24, 2016

        No relation John but you have hit the nail on the head, “lawyers stand to achieve very substantial fee income…”

        That’s the nub of it. These greedy parasites conspire in legal agreements to deliberately phrase wording ambiguously, so that when the time comes they can rake it in. All agreements could be written in unambiguous language with the pre cursor, “in any area of dispute, the common sense view shall prevail”. Sadly that will never happen as they couldn’t enrich themselves anymore with spurious arguments.

      • AS
        July 25, 2016

        Robert, I think you’re being way too hopeful to believe that 1) Anything can be written unambiguously and 2) that everyone’s going to agree on what “common sense” is. It’s a very optimistic attitude to have on the human race though, so keep it up.

  7. jklondon
    June 27, 2016

    So an act of Parliament is definitely required or arguably required to invoke Article 50?

    • Greg Callus
      June 27, 2016

      I would say arguably, as in I think it’d get permission to bring a Judicial Review, but would stand no better than a 20% chance of succeeding in that JR.

  8. valerieeliotsmith
    June 27, 2016

    Reblogged this on valerieeliotsmith.

  9. Pingback: RT @JolyonMaugham: An incredibly important point…. » Personal blog of Peter "Sci" Turpin

  10. gadlam
    June 27, 2016

    I thought UK retained full rights & obligations under the Treaties until the expiry of the 2 yrs post A50 notification or agreed extension, with the exception participation into discussions concerning exit negotiations. Could you clarify EP position post A50?

  11. Greg Callus
    June 27, 2016

    I disagree, but with trepidation given the authors’ individual and collective expertise.

    A governmental decision on Article 50, notified to the Council, would be an intra vires exercise of prerogative powers. There is an argument about whether it is ‘foreign affairs’ or pursuant to EU law, but it is (in my view) clearly a matter within the competence of HM Government (which may explain why nobody raised it until now).

    Notifying a decision under Article 50 doesn’t itself affect any statute, or the common law, or the Scotland Act (for all those Sewel Conventioneers out there) or devolution or anything else relating to the rights of the people of the UK. Nor even does ceasing to be a Member State up to two years afterwards.

    For as long as s.2 European Communities Act 1972 is in force (and for as long as EU law is written into the competency of the devolved legislatures), EU law (with all attendant rights and privileges accrued to date) will continue until repealed. Public lawyers seem to agree this repeal should be the final step, once the situation is settled at an international/EU level, but I think all agree it will be a necessary step.

    To change *this* position will require an Act of Parliament, of course, but there is no question of the ECA being repealed by any other method. But that doesn’t mean that an Act of Parliament is required to deliver the Article 50 letter.

    There’s also a practical point. Imagine the Article 50 letter was delivered to the Council tomorrow, with no Act of Parliament. What prospect would you give a judicial review holding that it was ultra vires, because (even though approved by a referendum, and the largest vote for a single option on a ballot paper in our history) Parliament hadn’t approved it? I’d say 20% at-best. Judges are not as anti-democratic as some at Policy Exchange would like us to believe…

    I’d be grateful for your thoughts, and correction of my obvious errors!

    • Jeffrey MCGEACHIE
      June 27, 2016

      The Scotland Act mandates that any laws passed by the Scottish Parliament must conform to EU Law. The issue of an article 50 notice is an irrevocable step in the disapplication of EU law in Scotland. By the time Parliament debates the exit deal the die will have been cast. In effect an act of the executive will have overridden statute.

      • Greg Callus
        June 27, 2016

        Again, an Art 50 notification is a step towards, but doesn’t actually do it. We could leave the EU by way of Art 50 and *still* leave in place in domestic statute (section 29(2)(d) of the Scotland Act 1998) the fetter on the Scottish Parliament’s legislative competence that it cannot legislate against EU law.

        It is arguable – on the most expansive view – that a change to devolved powers (even, as here, increasing them by removing a limitation) falls within the Sewel Convention, even though EU membership is not itself a devolved matter: however, it would only be engaged by amending the Scotland Act (which is several steps beyond Art 50 and leaving the EU) and even then, Westminster could legislate even without a Legislative Consent Motion in Holyrood.

      • seanjones11kbw
        June 28, 2016

        But Article 50 is EU Law

    • Dan Law
      June 27, 2016

      Greg – you say: “For as long as s.2 European Communities Act 1972 is in force … EU law (with all attendant rights and privileges accrued to date) will continue until repealed.”

      Art 50(3) says that the Treaties shall cease to apply to the state 2 years after notification etc. If ECA is not repealed, s.2 ECA means that Art 50 and this provision of EU law is applicable, in effect nullifying the rights under EU law once the period had expired.

      Even if ECA is not repealed, I can’t see a UK court continuing to recognise EU rights under the treaties when primary EU law unequivocally says the treaties shall cease to apply. I certainly don’t see the ECJ holding this (note also s.3 ECA).

      The notion of repeal of ECA being necessary pre-dates Lisbon and Art 50. While it may have been accepted wisdom that repeal of ECA is a necessary step, this is not a convincing argument that this still holds true and to thus suppose Art 50(3) has no effect on rights incorporated by s.2 and s.3 ECA.

      If, as you argue, EU law with exception of Art 50(3) continues in force until repeal of ECA irrespective of Art 50 being invoked, then exercise of the prerogative would not effect individual rights. Your conclusion would then follow. However, while having great respect for your legal acumen, I am not convinced by the premise of your argument – i.e. that the EU law which is applicable is the corpus with the exception of Art 50(3).

      I may perhaps have misunderstood your point, which may be more subtle:. If Art 50 was invoked without Parliamentary involvement, then constitutional principle would mean than this would not of itself effect rights under EU law as recogised in ECA; repeal of ECA would be necessary to comply with domestic constitutional law i.e. as stated by Lord Oliver in the Tin Council case:

      “as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.”

      However, supposing (per absudum), that invoking Art 50 this way were in accordance with Art 50(1), then (as per Factortame), the supremacy of EU law would mean that this principle of domestic constitutional law would have to be set aside to give effect to Art 50(3) (assuming s.3 ECA is still in force). From this it seems apparent that this would not be withdrawing from the Union in accordance with domestic constitutional requirements, but in a way which is incompatible with domestic constitutional law. Hence the Art 50(1) requirement would not be met by simple exercise of prerogative powers; Parliament must approve this. Without that approval, any notification would be a legal nullity given the requirement of Art 50(1).

      Of course if the Act establishing the referendum had given Parliamentary approval to the result (making this ‘binding’) further Parliamentary involvement would not be necessary. But that is not so.

      You might perhaps argue that Lord Oliver expresses constitutional law too narrowly, and that the principle requires the intervention of Parliament or a referendum (even if expressed as advisory). I don’t know any authority which supports that proposition, and until such a development of our domestic constitutional law is recognised, it would be hard to claim the requirement of Art 50(1) was met on this basis.

      • Greg Callus
        June 27, 2016

        You have a very good point that a likely (if not, in my view, ‘the’ likely) reading of the ECA is that once the Treaties cease to apply to the UK, EU law ceases to apply. So after Art 50 letter is sent, and we leave, UK citizens would (after up to 2 years) cease to have rights under EU law. Imagine that this position is correct (which I don’t concede).

        If that were the case, the rights ‘lost’ would be lost not by exercise of the prerogative power alone, but by the effect of the will of Parliament – expressed in the ECA – that domestic law automatically gives effect to the EU Treaties (which are agreed, amended and rescinded by prerogative power alone). It would be the ECA itself (i.e. Parliament) that gave effect to Art 50 TEU and the rescission of EU law.

        And this demonstrates the flaw in the entire premise that Parliamentary pre-approval is needed to notify the Council under Article 50. Whilst there is a case for saying that some forms of the prerogative require Parliamentary approval, prerogative acts in relation to the EU almost certainly don’t: they are (at present) automatically approved by Parliament by operation of the ECA.

        The ECA giveth, and the ECA taketh away.

      • Dan Law
        June 27, 2016

        You say “It would be the ECA itself (i.e. Parliament) that gave effect to Art 50 TEU and the rescission of EU law.” ECA s.3(1) stipulates that such questions are to be determined in accordance with principles laid down in any relevant decision of ECJ. From that standpoint Art 50 has effect not by virtue of ECA, but as a treaty provision.

        In any case ECA doesn’t authorise a minister to invoke Article 50. Where an Act gives such delegated authority there is usually a positive or negative resolution procedure. I don’t see how anything in ECA can be regarded as giving Parliamentary authority for triggering this process.

    • Stephen Laws
      June 27, 2016

      I agree with everyone who thinks that the possibility of a successful legal challenge is highly unlikely; but the implementing Bill repealing the ECA and, presumably saving large chunks of law made under it until we can decide what we no longer want – and changing other existing law immediately – has to represent (or at least have effect in the context of) the terms of what is negotiated by way of exit terns. Getting that Bill through a pro remain Parliament is going to be even more difficult without an electoral mandate for the exit terms. The referendum provides a mandate for exit but leaves acres of room to quibble over the terms and how you give effect to them and no mandate for what emerges from the negotiation. This is specially so when it is clear that the vote for exit comprised votes for numerous different perceived versions of the likely exit terms. Can you sensibly or safely commit with the Art 50 notice without knowing if you can deliver on the terms or how. So ideally some preliminary Bill to provide a workable mechanism for implementation should come first – perhaps with endorsement in a general election. The mistake would be to think negotiating the exit terms is all there is to it. Even when you’ve negotiated them, you need to be able to implement them and relatively quickly.

    • seanjones11kbw
      June 28, 2016

      I would just post “I agree with Greg” but that got me into terrible trouble last time I did.

      • Dan Law
        June 28, 2016

        Do you agree with Greg 100%? (inc. his view of 20% chance of success) or is your view that this is not even arguable?

    • Anthony Arnull
      July 1, 2016

      You may have a point.
      Article 50 sets out how a Member State wishing to withdraw from the EU must go about doing so. It seems to fall within the scope of s2(1) of the ECA as a power or obligation ‘created or arising by or under the Treaties’ and must therefore be ‘recognised and available in law, and be enforced, allowed and followed accordingly…’ In other words, triggering Article 50, a provision of one of the EU Treaties, cannot be incompatible with the very Act that makes those Treaties binding in the UK.
      There may, however, be good reasons of policy and pragmatism for authorising that step by Act of Parliament. As has been pointed out, Parliament is equipped to carry out a detailed analysis of all the implications. Moreover, a challenge after the Article 50 process had started could cause chaos, with no certainty that it would stop the Article 50 clock (a question that might be referred to the ECJ, along with the question whether an Article 50 notification may be revoked).
      The departure agreement itself would take the form, not of a treaty, but of an international agreement concluded by the Council acting by qualified majority after obtaining the consent of the European Parliament. If Treaty changes were considered necessary (eg to the list of Member States or the provisions on the territorial scope of the Treaties), these would be made by the 27 Member States without the UK.
      It should also be remembered that the EU is operating on the basis that the Article 50 agreement will only deal with the process of disentangling the UK from the rest of the EU. The UK’s future trading relationship with the EU would need to be the subject of a separate agreement, negotiations on which would not start until after it had left.

  12. seethingmead
    June 27, 2016

    Made me stop and think. A couple of quick points, and not at all sure I know at outset where they might go

    1. Not convinced the factual matrix of either Case of Proclamations or FBU lend itself fully (or much?) to this scenario. Neither is discussing an Act itself passed to give effect to Int Law relations, quite properly entered into by the Crown as an exercise of prerogative. FBU was, in effect, extinction of earlier prerog scheme by Parl – a deliberate change of policy/mind by parliament evinced in the legislation. That does not seem to obtain here – though whether that does or would lead to different outcome is obviously moot.

    2. It seems to me interesting and of note that Art 50 does not speak of “domestic constitutional requirements” though this Jeff, Nick and Tom is what you choose to head section (ii) above. “Its own constitutional arrangements” presumably wider and able to encompass its external constitutional arrangements i.e. its Treaty-making (and altering) power. Again, what mileage in this, I am not sure.

    3. Even on the analysis provided in (iv) the “decision” to withdraw is that of the Govt. PM/ Crown – empowered or even required to do so by Parliament. There is as I understand the argument above no proposal that (say) the Speaker communicate the UK’s decision. The operative decision must surely be that Art 50 is getting at, which bring as back to the prerogative point

  13. Aileen McHarg
    June 27, 2016

    Sorry to disagree, but I think this is an exercise in wishful thinking. I don’t think you can reduce the principle of the dualism of domestic and international law to a mere technicality, and I think you are making too much of Fire Brigades Union, which not only involves very different facts, but a wholly different policy area, where there are no strong issues of justiciability.

  14. Holly Hathrell
    June 27, 2016

    Do you believe we need an independent regulatory authority such as the IPSO to maintain minimum factual standards in political campaign material? There is currently no law to stop official political campaigns from lying. We deserve better. We had a protest in Oxford today calling for the creation of such an authority. Could there be an argument that, at such a close vote, infringement of voter autonomy due to lies by official campaigns may have effected the results, and thus the rights afforded to us as EU citizens?

  15. Joe Barrett
    June 27, 2016

    Very interesting, but will not bear up to serious scrutiny. Also, just pause and think about the politics – London based lawyers go to Judges to thwart the will of the people. An interesting academic exercise, but pursuing this line of attack would not be well advised. If there is an ‘answer’ to Brexit it will have to be a political one, following a general election.

    • Keith Syrett
      June 27, 2016

      I agree entirely.

    • Dan Law
      June 27, 2016

      You could say that London based lawyers go to judges in order to ensure will of the people is given effect. If Parliamentary approval is legal requirement under the treaty, then ignoring this means that legal validity of withdrawal would be questionable.

      I think the UK may still be a constitutional monarchy (maybe that too changed in the last couple of days). If so, supreme power is Queen in Parliament. Constitutionally, the decision in referendum could be overidden by Parliament – but there would be political cost. It wouldn’t be lawyers “thwarting the will of the people”, it would be Parliament.

    • William Porter
      June 28, 2016

      Completely agree, and this whole post/discussion carries a strong whiff of that.

  16. seethingmead
    June 27, 2016

    Another another point has just struck me – and apologies if this is LAW101 stuff, or indeed subject of recent blogs. Its an extension of the competing dualist perspectives of public law

    The contention as I understand it is that Crown cannot deprive citizens of (here) accrued EU rights, conferred under statute – the 1972 Act. Only Parl can take away those rights. The answer surely is that it can do so – or can choose not to – but an Art 50 authorising statute will not be the vehicle.

    To explain.

    The ECA – and the rights therein – will not fall if we activate Art 50 or indeed as and when after that we leave. Section 2 makes clear that the domestically-enforceable EU rights etc that we have are those that are created or arising under the Treaties. There is nothing in s.2 or in s.1(2) – where we find the definition of Treaties – that limits this to those that from time to time are the ones that UK continues to be bound by. They are defined as at time of signature or accession. Thus EU law – as agreed to by the UK in 1972, rejected by the UK in 2018 (say) but adhered to by those that remain in the Union – continues to exist in domestic law unless and until Parliament chooses otherwise by (for example) repealing the ECA 1972. Their continued application in domestic law is not parasitic on continued international membership, as a result itself of the 1972 Act.

    Thus, Parliament will have its chance to remove – or assert – continuation of EU rights as a matter of domestic law as and when there is a vote on repeal of the 1972 Act.

    There are echoes I suppose – in the context of the ECHR – of Conventions rights and rights in the ECHR: see Lord Nicholls in Re McKerr [2004] UKHL 12 at [26]

    • Stephen Laws
      June 29, 2016

      I don’t believe this is correct.

      Directly applicable rights and obligations themselves are dependent on the UK being a member State. So they don’t exist if it’s not. You cannot distinguish between the substance of a right or obligation and who has it.

      Others derive from implementing regulations the power to make which depends on the UK, as a member State, continuing to be bound by the directive. The general principle in UK law is that if you remove a power under which a legislative instrument has been made, the instrument ceases to have continuing effect from the time when the repeal takes effect. Even if s.2(2) stays in place, the power to make the implementing regulations disappears if the UK is no longer bound by the directive. The state’s obligation to implement is an essential component of the power.

      In other words, the U.K. leaving the EU at the end of the Art 50 notice period creates legal chaos unless Parliament has already passed a Bill that sorts it out, or at least postpones the need to do so. That’s why it’s important, in practical and constitutional terms, that there should be clear endorsement by Parliament of the route to the end of the process before it is begun.

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  18. JabbaTheCat
    June 27, 2016

    Well summed by Dr Richard North…
    “I think this is BS. Parliament has no role in the Art 50 notification. This is done by the Government under Crown prerogative. For sure, Parliament must ratify the final settlement, but it has no direct power to interfere with the Art. 50 process.”

    • Jeffrey MCGEACHIE
      June 27, 2016

      BS is when individuals profess devotion to the unwritten Constitution and then casually subvert it through misuse of prerogative. See above

    • Robin E
      June 27, 2016

      Have you any basis for this assertion? Given the depth of analysis and reference above a more substantial response than ‘this is BS’ would be useful and respectful.

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  21. Marty Caine
    June 27, 2016

    Two things are puzzling me here, firstly can you send me a link to our constitution as I never realised we actually had one. They are normally written after a country has won its independence, something we have never had to do before.

    Secondly, the Lisbon Treaty is the EU rule book, one that we have signed up and agreed to. The exit route of that is Invoke Article 50 and then negotiate exit terms. Now no matter what anyone else say I am quite sure the first step is to Invoke Article 50 and not doing so leaves us in the exact same position as we were before the referendum was called. No negotiations can take place until Article 50 is invoked. We can’t renegotiate exit terms with the EU without first doing so, nor can we negotiate with the many already offering us trade deals, America and Germany including. So I think I am right in saying that until we invoke Article 50, nothing has happened and nothing can be changed.

    • It doesn't add up...
      June 27, 2016

      Nonsense. Parties are always free to negotiate howsoever they wish, if they are agreed in doing so.

      Article 50 is not the sole lawful means of leaving the EU. If this were the case, Greenland could not have left the EU in 1985, but it did. Greenland left under what is now the ‘ordinary revision procedure’, or article 48 of the Treaty on European Union (TEU) (TEU, art. 48, link; Official Journal, 1 February 1985, link). Under international law, it is also possible to leave the EU under article 54 of the 1969 Vienna Convention on the Law of Treaties (Rieder, 2013, link; Dorr, 2012, link).

      The EU has also on many occasions ignored its own rules to reach deals that are politically convenient. The recent bailouts and the ‘outright monetary transactions’ programme were both adopted in prima facie violation of provisions of the EU Treaties agreed at Maastricht which were necessary to secure Germany’s agreement to economic and monetary union.

      It will be for the Government to decide when, if at all, Article 50 is triggered and the most appropriate means by which the UK leaves the EU.

      Article 50 is merely the emergency exit cord should the EU be so stupid as not to indulge in sensible negotiations any other way. It contains an obligation on the EU (I’ve checked the texts in German, French, Spanish and Dutch on this point) to negotiate (if they attempt to stonewall, they could be dragged before their own court for breach of the treaty), and to conclude an exit treaty (that is to reach an agreement) – an obligation which persists after the guillotine on the applicability of the existing treaties ceases. In the mean time, the UK would be obligated to continue paying contributions until the guillotine takes effect, so that in fact the boot is on the other foot so far as extension of the guillotine period is concerned – it would be the UK that relies on this to prevent the ongoing abuse by the EU, and the EU who would seek to persuade us to keep contributing.

      • Marty Caine
        June 28, 2016

        That is not quite correct, Article 50 is the only legal way of leaving the EU, any other means such as repealing old acts would actually be seen as a breach of not just the Lisbon Treaty but also International law. Now considering the exit negotiations are pretty much irrelevant as we are only really interested in a trade agreement with the EU and a FTA would be far more in their own interest than ours because of the massive trade deficit we have with the EU. Would it not make sense to play by the rule book and not give the EU the opportunity that they so desperately need to punish us for voting to leave. If they do not punish us then others will undoubtedly follow our route to the exit door.

        By delaying the Invoking of Article 50 our government are causing uncertainties in the markets, and risking Britain still being a member of the EU when the eurozone collapses. The €1 Trillion of QE was clear evidence it is not a case of if but when and Brexit will undoubtedly speed up that unavoidable collapse. If we are still members when that happen we will be fully liable for any bailout costs the EU deem fit to charge us.

    • chrisharrison
      June 27, 2016

      That’s not what’s being discussed here. The issue is whether Parliament must give effect to a triggering of Art 50 or not.

      • Marty Caine
        June 28, 2016

        As far as I am aware parliament is there to fulfill the wishes of those who have elected them to be there, as the referendum result was democracy in action should any parliamentarian then go against the will of the people would they not then be in breach of their own code of conduct. I fail to see how parliament could reverse this democratic decision but if they should, ironically the European Court of Justice could overrule that decision. That would certainly be a strange scenario.

        I am fairly confident that David Cameron will uphold this referendum decision and so will his successor, who I suspect will be Theresa May.

      • David L Brown
        June 29, 2016

        Parliament has never been there to fulfil the wishes of those who have elected them. We are a representative democracy. We elect MP’s to represent us, but it is impossible for those MP’s to find out on every single vote what the majority of the constituents in their constituency want. It is even quite normal for MP’s to vote against their own manifesto (reference the Liberal Democrats and Tuition Fees in the previous Parliament). If we don’t like how they have represented us our only recourse is to kick them out at the next election.

        Has anybody actually worked out in how many constituencies a Remain vote was the majority, and in how many a Leave vote was the majority?

        An MP is absolutely not in Parliament to represent the entire UK.

      • markandrews
        August 3, 2016

        What is being discussed here is how those who support remain with the EU can block the result of the referendum through legal manipulation.

      • Tom Austin
        August 5, 2016

        Rather than argue with your thrust:What I’d change;By lawful means. We cannot run a Democracy along ‘Maradona’ lines.

  22. Stephen Pigney
    June 27, 2016

    Reblogged this on Past and Present Progressive.

  23. Brita Forsstrom
    June 27, 2016

    I’m listening to Cameron in Parliament right now. Has the message of this article got through to him? If not, please could you send it to him, or indeed to all members of parliament.

  24. Pingback: Article 50, and UK constitutional law | Head of Legal

  25. Pingback: BREXIT: THE LEGAL CONSEQUENCES: USEFUL LINKS | Civil Litigation Brief

  26. Denis Cooper
    June 27, 2016

    Over the past eight years Parliament has had at least three opportunities to assert a right to determine whether or not an Article 50 notice can be issued, and it has shown no interest in doing so. So in my layman’s pragmatic view it’s a bit late now for Parliament to object to a notification being made under Royal Prerogative.

    The first opportunity was when the Act to approve the Lisbon Treaty was being passed in 2008, when Parliament could have insisted on an amendment to the Bill to prevent the government triggering the new Article 50 TEU without some kind of parliamentary authorisation.

    The second was during the passage of the European Union Act 2011, which lists many treaty articles where the government may not make a decision without some kind of parliamentary authorisation. The list actually includes a decision to move Article 50(3) from unanimity to majority voting but it does not include Article 50(2) which relates to the notification being given.

    The third opportunity was last year when the European Union Referendum Act 2015 was being passed. That Act is actually silent on what would ensue from a vote to leave the EU, but Parliament had ample opportunity to insert a clause laying down that the minister may not give the formal notification that we are leaving the EU without prior parliamentary authorisation of some kind.

    • Dan Law
      June 27, 2016

      If Art 50(1) requires Parliament to approve the decision to withdraw, then there is no requirement for Parliament to stipulate this requirement – the treaty does that. This raises the question of how 50(1) should be interpreted, which is ultimately a question for the ECJ. If Art 50(1) does not require this, then notification may be by prerogative, unless Parliament stipulated otherwise, which, as you note, it has not.

      • eleanor spaventa
        June 28, 2016

        Article 50(1) cannot require national parliaments to do anything – it would indeed be a constitutional revolution if it did. happy to elaborate if anyone interested,

      • Dan Law
        June 28, 2016

        Yes, please would you elaborate.

        Article 50(1) states: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

        It is part of the UK’s constitutional arrangement that laws and rights may not be dispensed with without consent of Parliament. For UK to give notice in accordance with Art 50 thus requires that consent. It is not Art 50(1) that set the UK constitutional arrangement – the Bill of Rights 1689 does that. What Art 50(1) requires is that triggering this withdrawal process complies with the state’s own constitutional arrangement e.g. Bill of Rights in the UK.

        What meaning do you attach to the words “in accordance with its own constitutional requirements”?

      • Christian Agi
        June 29, 2016

        I think the words “in accordance with its own constitutional requirements” carry a very important meaning, because they set an “nation-internal” first step for any state wishing to leave the EU in regard to the validity of the request to leave: They have to determine to leave according to their own constitutional requirements and cannot be dragged out of the EU by a government gone wild. (Because, if I am not mistaken, if a notification in a matter of international public law has been made, nation-internal problems cannot usually be brought to challange its validity.)

        But I don’t think that this first step of withdrawal is open for judicial review at the ECJ, because the ECJ cannot adjudicate on the constution of the member states (if that would not be ultra vires, I could not think of anything that would).
        If the “own constitutional requirements” are fulfilled, needs to be determined on the national level. Which, I suppose, is much more easy to determine in any of the 27 other EU member state, because they all have a written constitution with a defined set of competences for their government bodies and procedures to settle conflicts between these bodies.
        In Germany, for example, if the Federal Government would try to do such a thing, they could be taken to the Constitutional Court, which would determine if the Basic Law has been adhered to and what needs to be done to satisfy the constitutional requirements for such a step.

        But, as that step is followed by a second, “EU step”, it poses some other problems on EU level, e.g. if a determination is made on the national level that the constitutional requirements are not met AFTER the notice of withdrawal is given, does that void that notice? (I would think so, because if not, Art. 50(1) would have no real meaning and it could have been dispensed with.)
        This “second step” would be the point on which – in my view – the ECJ comes into play, but, in its proceedings, has to accept as given the constitutional determinations made in the respective state.

      • Dan Law
        June 29, 2016

        There is also potentially the question of whether the constitutional attangements meet the requirement of ‘legality’ on the international plane, including compliance with EU Treaties and International Conventions (would Art 50 notice be valid if a state became a constitutional dictatorship overnight and withdrew from the EU based on decision taken by the dictator?). This may be framed in terms of estoppel in international law. Note also that ECA is part of the UKs own constitutional arrangement (or is it not for purposes of Art 50?).

        But yes, the question is firstly one for national courts. However this is live question in terms of valid notice under Art 50, and the meaning of Art 50(1) is not entirely clear. Is the result of an advisory referendum a ‘decision’ for purposes of Art 50? If a minister gives notice of that result, does that trigger Art 50? I doubt it, but some read it that way. That is a matter of how to interpret Art 50, which of course follows ‘teleological’ principles taking into account purpose of treaties, equally authentic language versions etc.

  27. Pingback: Kenneth Armstrong: Push Me, Pull You: Who’s Hand on the Article 50 Trigger? | UK Constitutional Law Association

  28. I agree with Greg Callus and Aileen McHarg.

    As Aileen says, I think this is wishful thinking based on an over-reading of the FBU case. There’s nothing in the ECA 1972 that ousts or limits the prerogative in the way the very particular way the commencement discretion did in the FBU case.

    I very much want Parliament to stop article 50 notification, but that can only be done by the political means of changing the government or imposing a new policy on it. There’s no legal argument against it.

    • Peggy
      June 27, 2016

      This is very interesting thinking but seems to me a way of buying some time before starting the negotiation or trying to give the “hot potatoe” back to Parliament as we say in French (I guess the correct translation in English would be to pass the buck).
      Please correct me if I am wrong but I was under the impression that triggering article 50 is a matter of prerogative. Parliament may be involved but I’d think at the end of the process of negotiation on the basis of the 2010 Act if the negotiation deal takes the form of a Treaty. Triggering Article 50 does not repeal, per se, any Acts of Parliament although the process would eventually lead to Parliament having to repeal the EC Act 1972 and to amend the different devolution statutes.
      As far as the judicial control of this prerogative is concerned, I doubt the case referred to is particularly relevant to our matter, in addition I would think that judges would consider the triggering of article 50 a non-justiciable issue.
      I believe nothing prevents the government from requiring the consent of Parliament before triggering article 50. And nothing prevents Parliament, being sovereign, from ignoring the result of the referendum. But Parliament started to give referendum a new constitutional dimension with the EU Act 2011, therefore it seems difficult now to go backwards unless and until a new Parliament is elected on the basis of a manifesto pledging to stop the process of leaving the EU.

  29. Robin E
    June 27, 2016

    Regardless of the actual legal position, as this discussion develops and the uncertainty, complexity, regret and downside becomes more evident the willingness of the new PM to trigger Art.50 without a parliamentary mandate will likely diminish.

  30. Pingback: RT @karaspita: Here’s a constitutional law argumen… » Personal blog of Peter "Sci" Turpin

  31. Pingback: Nobody wants to push the Brexit Button – Will Bregret lead to Bremain? | itsveso

  32. Pingback: What should the EU do now? – Financial Times – Darwin Survival

  33. Lindsay Gasser
    June 27, 2016

    The author assumes there is a way to combine ;leaving the EU with protecting the national interests of the UK. Those who voted to remain will find this difficult to envisage. The other EU countries were quite clear beforehand and are so now: they preferred the UK to remain. But if we voted to leave, then this should be expedited. And of course the remaining members have the ‘whip hand’ in negotiations – how could it ever be otherwise? I continue to be amazed at the lack of analysis by those who campaigned for Brexit. Don’t blame the voters, blame those who led them astray.

  34. Pingback: Confused About Brexit? | Bora Laskin Law Library Reference Services Blog

  35. Jack Roe
    June 27, 2016

    Your analysis is erroneous. A proper construction of the treaty is that, per s. 1 of art. 50, the UK has decided already “in accordance with its own constitutional requirements” by the referendum. The idea that a majority vote by all the commons of the UK, could be over-ruled by their appointed representatives in the House is absolutely ridiculous and anti-democratic.

    It certainly is not the part of an unelected aristocracy like the House of Lords to countermand the commons-in-referendum as they have decided. The commons-by-representatives-in-parliament is clearly an inferior body to the commons-in-referendum. Elitists and aristocrats will, however, always try to maintain that democracy is not the order of the day in English synods.

    At his point, the obvious ministerial duty of the representatives is to implement the will of their electors. The referendum is obviously an undertaking to clarify the way in which the representatives must act toward this file.

    Your analysis is at best formally correct, and at that only on the basis of the peculiar understanding that statutes don’t derive their ultimate force from the consent of the governed. So if the governed have, by voting in favor of a ballot, endorsed it, they have as much as enacted it as statute already. Legalistic and bureaucratic formalisms about enacting clauses have no place where millions of people have expressed their wills.

    This is a constitutional moment for the UK, and the people must seize their power and recognize that they have already statuted and ordained the future of their nation—and even if in the end some have regrets, it is better that they know their power, rather than being enslaved to a foreign bureaucracy.

    Everyone is equal, so the referendum is really like a super-statute voted on by 33,577,342 people. Seventeen million of them and change decided to support it, and only sixteen million and change were against, so it passed. I cannot fathom anyone with any sort of commitment to democracy denying the validity of seventeen million people assembled in synod by a much smaller synod of hundreds that these seventeen million have themselves appointed beforehand.

    if I appoint a steward to manage an affair for me, I can always re-enter the premises and manage it for myself, tho I may still owe my servant wages even if I don’t use him, depending on the customs concerning the wages of servants. The people have re-entered the issue of remaining in the European Union, and their servants must follow their will, that is simply how English law works, fides servanda est.

    • chrisharrison
      June 27, 2016

      “The commons-by-representatives-in-parliament is clearly an inferior body to the commons-in-referendum”.

      You’re just making stuff up. What you’re asserting has no basis in law, unless you’re suggesting that this referendum vote by (your) proclamation trumps all established law and the constitution of the UK?

      • Jack Roe
        June 28, 2016

        I once heard a judge refer to parliament as a “grand jury.” How much grander, then, is a jury composed of tens of millions of people? The real law in play here is that verdict of jurors are not reviewable, certainly not by parliament, which never was a court of law, anyway.

        There is a greater constitutional issue here. Are you suggesting it is not established law and constitution that the majority rules? How, then, could a small jury of parliament men, appointed by the 32 million electors who participated in the referendum, possibly reverse the majority? They haven’t got the numbers to have any authority.

        This is part of the unwritten democratic constitution of the United Kingdom, and of all democracies—if you disagree with this, you want some other form of Government, like aristocracy or oligarchy, which isn’t an indefensible position, but I think that anyone attemtping to bracket or to suggest that the clear will of the electors can be ignored on the basis of an “established law,” is quite threatened by democracy, and indeed believes that the law exists to frustrate democracy, reducing democracy to, basically, whatever the true ruling form decides is acceptable.

        Finally, all law is made up, and it’s not like we go by tradition these days, so what I make up is hardly any worse than what the EU supporters will make up. Certainly you get the gist of what I am saying—what sort of voter would ever countenance the idea that his vote could be reversed by parliament? You might as well say that the return of MPs is advisory, and that parliament could always simply vote to exclude an MP.

      • Tom Austin
        June 28, 2016

        Jack, fine – Let’s look at this ‘jury’ notion.
        What were the rules of evidence?
        Who examined the witnesses:in ‘chief’ and in ‘cross’?

        Who is the ‘judge’ what is their role?

      • AS
        June 29, 2016

        No Jack, democracy does not mean majority rule. That’s why we have a parliament which includes a variety of opinions not just one. I suggest you go and read a book to educate yourself on democracy. The dictionary would be a good start.

    • Prof Gavin Phillipson
      June 28, 2016

      Jack’s argument is a purely political / normative one, and not rooted in the UK constitution, in which referendums have whatever legal force (or none) that Parliament chooses to give them. This is so because, In the UK, parliament, not the people are sovereign, as every first year law student is taught. In this case, the relevant legislation made the EU Ref advisory. As a matter of UK constitutional law, therefore, the referendum itself cannot constitute a ‘decision’ ‘ in accordance with the UK’s constitutional requirements’. I think that’s fairly straightforward.

      • Dan Law
        June 28, 2016

        The question then is whether exercise of royal prerogative can constitute a decision “in accordance with the UK’s constitutional requirements”. Is there a valid notification under Art 50 without Parliamentary consent?

    • tiddk
      July 1, 2016

      The “commons-in-referendum” does not exist as such. A referendum is a very rare beast indeed, and the legal position of this one is that it is advisory only. “The-commons-by-representatives-in-parliament” is constitutionally underwritten by the Bill of Rights in the late 17th Century.

      It matters not that the Government – which may or may not be composed of elected members of the Commons – passes statutes which are inimical to the very people who IN EFFECT created it by voting in a majority for a particular political party; that is the system we have, and the occasional referendum does not alter that fact. It is the collective political decision of the Cabinet to abide by the result of the referendum and subsequently enact it by statute, but that does not legalise that result in any way. Challenges to the process can and hopefully will be made.

  36. Ed Miller
    June 27, 2016

    This all seems a bit silly to me – the most perfunctory of academic exercises. An Article 50 notice will be given by a government Minister through the exercise of a prerogative power, for which action the Minister will be accountable to Parliament.

    If Parliament doesn’t like the idea, it can pass a motion of no confidence in the government. All of this is very much in the political sphere. Judges should and will stay out of it. It is not as if this has been sprung upon an unsuspecting legislature; Parliament enacted the EU Referendum bill.

    The notice itself will not deprive anyone of any rights, nor will it contravene any statutory measure. The subsequent negotiations will be the object of further scrutiny in Parliament, and may well be protracted, with the possibility that a General Election may intervene.

    • Rosemary Mulley
      June 27, 2016

      The effect of the notice would be to deprive everyone of many rights. Once given, it would set the two-year period running. This could not be stopped by Parliament or by any further exercise of prerogative power. The effect of giving notice would be to take away or European Union citizenship, our rights to live and work, our rights to healthcare and to study. Any motion of no confidence would be impotent. It could not bring these rights back.

      Of course, we would hope that in the process of negotiation at least some of what we had lost – by giving notice – might be clawed back. I am not sure however why the negotiation process should be overseen by Parliament but the notice itself could be given unilaterally by the executive.

      • Ed Miller
        June 28, 2016

        This is about politics, in the UK and in the EU. It is not about whether Boris as PM sneaks off to Brussels with a letter without letting on, the day before a no confidence motion. For goodness sake, we had a referendum. If MPs care to ignore it they have time to force a General Election. The EU would let us tear up a hasty letter. MPs will, if nitpicking lawyers have convinced them of the need, authorise the Article 50 notice.

        Let’s not get bogged down in this stuff. It is incredibly petty and an affront to the political process.

  37. Pingback: Only a vote in parliament can trigger Article 50 say constitutional experts | The k2p blog

  38. Utting Wolff
    June 27, 2016

    Reblogged this on Utting-Wolff Spouts and commented:
    Brexit and Article 50.

  39. Pingback: Here are 3 Crazy Scenarios In Which Brexit Doesn’t Happen - Fortune

  40. Eleanor Spaventa
    June 27, 2016

    Very interesting although I think though the UK should be very careful not to alienate its partners – remember it needs their agreement for any deal – protracted uncertainty (and its effect on the economy of the EU) might not be the best way to start with a strong negotiating position. Also you might be interested in a different perspective from the continent

  41. Pingback: A Constitutional Solution to this Constitutional Crisis – Vinculum juris

  42. Matt Leese
    June 27, 2016

    Are all you people completely off your heads? If this was a non-binding result then surely it should have been clearly stated and made to be understood by the 33 million people who voted?

    If Parliament rejected the vote then someone could take them to court stating that the public had been misinformed and that the government must enact article 50 because 99.9% of the public thought this was a legally binding vote.

    • Tom Austin
      June 28, 2016

      I’d be interested to learn when and how you came by the notion that this referendum result was to be binding.

      • Robmod
        June 28, 2016

        The notion was come by via Cameron stating that the result would be determinative. The discussion here reveals that his position has no firm foundation and maybe ultra vires. Certainly the question should have been settled beforehand, yet shamefully there was scant scrutiny. Nevertheless, the uncontroversial position is that the referendum result does not create a legal obligation for the government to leave the EU because the enabling legislation did not specify such a thing. A PM’s promise (if that is what it was) doesn’t change that. Cameron could declare tomorrow that he’s changed his mind, was ignoring the referendum result and that the UK would not be leaving the EU. He has multiple grounds for doing so.

        Doubtless there would be lots of shouting and the like but I doubt whether even a motion of no confidence would succeed, given the makeup of the Commons. Indeed if he called a snap General Election on the issue, the Conservative party would win, because it is clear that the real majority in the UK is strongly for Remain. And all those euro phobic conservatives including Johnson and Gove would be back at square 1 having to justify why they lied to the public about the reality of a Brexit in the first place. They would be neutered. And no questions of constitutionality would arise.

      • Tom Austin
        June 28, 2016

        Yes ‘Rob’, I was not in the dark as to those facts – I simply wished to know how somebody (anybody) could be so certain as to things being otherwise.
        ‘Conservative’ win – I do so enjoy a little drollery.

    • Gavin Phillipson
      July 2, 2016

      It’s not legally binding and I doubt was ever said to be so. It is however, politically determinative. Some of the most important rules in the UK constitution (such as that the Queen’s prerogative powers are exercised on her behalf by Ministers) do not have the force of law.

      • Solange Lebourg
        July 6, 2016

        In what sense is this politically determinative?

        Bear in mind that only 37% of those eligible voted for it.

  43. DNACowboy
    June 27, 2016

    They could try, but the message it would send around the world to despots and dictators would damage democracy for a hundred years, perhaps never to recover and for what, cheaper roaming charges? Have you no shame? If a single sitting UK mp was to try to counter the democratic will of the British people there will be carnage in the streets.

    • Robmod
      June 28, 2016

      What democratic will? It was 17,410,742 votes out of an electorate (not including 16 and 17 year olds who will be immediately affected as adults at the earliest time a Brexit can happen) of 46,500,501. That’s 37.45%. And that my friend, is a tyranny of the minority. Indeed, when you drill down into the data, it becomes clear that the proposal to leave the EU is founded upon gerontocratic and not democratic principles.

      • Alistair
        June 30, 2016

        If shame doesn’t convince you, then think on other consequences.

        How far do you think this sophistry can be pushed before you get civil violence?

  44. Pingback: What is sufficient to constitute an Article 50 notification to leave the EU? – Aberdeenunilaw

  45. Alex
    June 28, 2016

    I’m a civilian so please excuse the probably stupid question.

    Quote: “In our constitution, Parliament gets to make this decision, not the Prime Minister.”

    If Parliament does authorise the Article 50 process despite the (rapidly emerging fact that) “… the case for Brexit has not been made – or was gained under a false prospectus. As Edmund Burke taught us, ours is a representative, not a direct, democracy.”

    Would/could this be subject to a legal challenge in the courts.

    Thanks in advance

  46. Pingback: On Brexit (some more) - ***Dave Does the Blog | ***Dave Does the Blog

  47. Joann Alsdorf
    June 28, 2016

    If Cameron, Johnson, Farrage and Corbyn were found to be in breach of the Code of Conduct for the House and the Ministerial Code, what does that do to the position?

    • tiddk
      July 1, 2016

      Since Farage is not an MP (thankfully) he could not (unfortunately) be found to be in breach.

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  49. John Charlton
    June 28, 2016

    I’m not a lawyer, but it seems obvious to me that triggering an Article 50 notice inevitably leads to the UK exiting the EU. The fact that it takes two years doesn’t change the result. If I poison someone slowly over 2 years I’m just as guilty of murder as if I point a gun at them and pull the trigger. The UK Parliament had to pass one or more bills to join the EU. The argument is simply whether the Executive can defeat the effect of that legislation by executive action, which an Article 50 notice would inevitably do, eventually. Unless the Executive can repeal legislation without the approval of Parliament (which appears doubtful), I fail to see how anyone can argue that the PM has the authority to issue the notice without an Act of Parliament.

    • Dan Law
      June 28, 2016

      I agree. The main argument seems to be that to argue that Parliament must approve this would be seen as an attempt to thwart the democratic will of the people and would lead to political backlash. That might sound like disregarding constitutional law and throwing the rule of law out of the window in face of popular sentiment, so the applicability/relevance/importance of this principle of our constitutional law is doubted. But this is not some esoteric legal technicality wrested out of some obscure case – it is fundamental constitutional principle as set down in the Bill of Rights 1689: “laws should not be dispensed with or suspended without the consent of Parliament”.

      I would be very uncomfortable if Parliament did not consent, but I would draw a red line at subverting the Bill of Rights.

      • Rosemary Mulley
        June 28, 2016

        Yes. We are subject to the rule of law. If that has now become an irrelevance and subordinate to politics, then there has been a revolution.

  50. JNzuve
    June 28, 2016

    I think this is wishful thinking based on an over-reading of the FBU case

  51. Dave
    June 28, 2016

    Constitutionally 1. You have an act of Parliament in place but that act really does not need to be repealed until we actually leave. 2. Recent convention for international events such as acts of war has been to have a motion and vote in Parliament – a lot quicker and simpler than an act of parliament. So knew scenario is that the new PM puts down a confidence motion on the proposal to accept the results of the referendum. This also gives a mechanism for the PM to lose the confidence vote as step 1 towards a General Election. 3. Include Brexit in the next Queens Speech of the new parliament. 4. Post Brexit and with the terms in place of a new treaty there would presumably be a new act of parliament repealing the European Communities Act. Just a thought but we could find ourself out of the EU and parliament refusing get to repeal the act so that we would be obligated by Parliament to canon time up to relate to the EU in a way that no treaty any longer requires us to.

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  53. Rosemary Mulley
    June 28, 2016

    Ed Miller

    Any democratic or moral legitimacy of the referendum result is in any case undermined by the fact that it was obtained by fraud. But it was only ever advisory in the first place. Its existence should not shut down discussion of the extent of the prerogative and the power of the executive to repeal legislation.

    The legislation which, it should be noted, was legitimised by the democratic mandate, as it is defined in our constitution.

    We have not voted for a new constitution.

    • Ed Miller
      June 28, 2016

      The remedy is political.

      If Parliament were willing to assert the right to vote against an Article 50 notification, then it would tell you something about the politics of the situation that makes all of this discussion moot.

      • Rosemary Mulley
        June 28, 2016

        It would probably tell me that Parliament had realised that a premature article 50 notification would put the United Kingdom in a perilous position.

  54. Rosemary Mulley
    June 28, 2016

    The trouble with giving effect to the referendum result is that it says very little. The aspiration to “leave” is unspecified and could mean any number of things. A vote to agree to give effect does not take us much further.

  55. Cromwell's Ghost
    June 28, 2016

    But in opting out of various areas of EU Law that Parliament has not wished to be bound by, and presumably having used prerogative power to justify doing so, they have already used prerogative power to defeat statute. Section 2 of the ECA 1972 does not say “whichever bits of EU Law the Government of the day might fancy”, it says “All such rights, powers, liabilities, obligations and restrictions…”. So there is already precedent for overriding statute using prerogative power.
    The reason the Constitution is not written down is in order to provide maximum wriggle room, should the need arise. And if we’re talking about the Constitution, the 1972 Parliament was convened under the principle that “no Parliament might bind its successor” yet the European Communities Act does just that – a strict Diceyan view I know. Nevertheless, the issue remains. This principle, being oft quoted when it suits and swept aside when it doesn’t, gives further weight to the idea that the Constitution is largely ineffective and exists as an absurdly flexible tool to justify whatever it is Parliament wishes to do today, no matter how much it might vary from previous practice.

  56. Pingback: A Constitutional Solution to this Constitutional Crisis – LaPSe of Reason

  57. Dan Law
    June 28, 2016

    One of the key documents of our constitution is the Bill of Rights 1689, and central to that is the provision that “laws should not be dispensed with or suspended without the consent of Parliament”.

    The importance of that cannot be overstated.

  58. Andrew Cook
    June 28, 2016

    Shouldn’t all of thie been made explicitly clear as part of the referendum process?

    • Dan Law
      June 28, 2016

      This should have been explicitly clear as part of the education process – English Civil War, Glorious Revolution, Bill of Rights, constitutional monarchy and Parliamentary democracy. Ignorance of our constitution is no reason for now ignoring it.

  59. Pingback: Dear Ben Bradshaw MP #Brexit – A Dartmoor and Devon blog

  60. Pingback: Does Brexit Require Legislation? | spinninghugo

  61. spinninghugo
    June 28, 2016

    i think the above is plainly wrong, and seek to explain in simple terms why here

    • Dan Law
      June 28, 2016

      I see the logic that repeal of ECA is not needed, and agree with that. As you say in your penultimate paragraph in the blog, there would be nothing left (and the authors here argue this too). That however means that triggering Art 50 would dispense with laws and rights. As a matter of constitutional law this requires consent of Parliament: Bill of Rights 1689. Notification of the decision to withdrawl in accordance with Art 50(1) thus requires Parliament’s consent, otherwise it would not be in accordance with the Bill of Rights and the UK’s constitutional arrangements.

      Would you explain why you think Parliamentary consent is not needed for a valid Art 50 notification.

      • spinninghugo
        June 28, 2016

        it is no more needed than for any other change to EU law that reduces or changes the rights of persons as a matter of UK domestic law. The European Communities Act incorporates the law under the Treaties as it is from time to time. As it changes, so the law as incorporated into UK law changes.

  62. Rob Kaye
    June 28, 2016

    I’m afraid this is all just wishful thinking.

    1. I don’t necessarily accept that the 1972 Act was intended to create rights which can only be extinguished by legislation. I think a better purposive interpretation would be that it was passed to give legal effect to the decision of the UK to join the EEC. While legislation may be needed as a consequence of a subsequent decision to leave, it does not follow that the legislation is a prerequisite.

    2. To the extent that the 1972 Act did give legal effect to the rights in the Treaties, one of those rights is – as a result of the Lisbon Treaty – the right of the state to withdraw from the European Union. So the 1972 Act itself now contemplates the possibility of withdrawal.

    3. To the extent that the 1972 Act creates an implied restraint on Ministers not to exercise prerogative powers other than in pursuance of the UK continued membership of the EU, I would suggest that the European Union Referendum Act 2015 has superceded that an implicitly gives Ministers a power (but not a duty) to act so as to facilitate the UK’s withdrawal from the EU. The Act explicitly contemplates “WHETHER the UK should remain a member of the European Union”. I don’t argue that an implication in an Act would be sufficient to overcome an explicit statutory requirement; I do think it’s enough to overcome an implicit restraint.

    4. Ultimately, what are the chances of a court being willing to strike down a decision of the Prime Minister to invoke Article 50 following a clear (in the sense of uncontested) majority in a referendum? Even if you think that a judge would bend over backwards to allow a successful JR, would they do so following a vote in a referendum enabled by clear legislation which explicitly contemplated the UK leaving the EU? To those saying it may only be a 20% chance, I doubt it’s as much as a 2% chance.

    The only way this is going to be revoked is politically, if the new Government – or a new House of Commons – decides not to withdraw from the EU despite the referendum result. It won’t happen because there’s some bit of legal woo that can stop it. If you think that, you’re away with the Freemen on the Land.

  63. Pingback: Brexit Crisis: how does the monarchy fit in? | Francis Young

  64. JR
    June 28, 2016

    Another example of why we need a written constitution.

    • Rosemary Mulley
      June 28, 2016

      As the authors say, the constitution is written but not codified.

  65. Pingback: So what is the truth on Brexit? The law and logic….. | lmoscovitch

  66. Rivergate Nowinter
    June 28, 2016

    isn’t a key point that the EU is itself bound, per Art 50, to look at whether the trigger is in fact in accordance with the member state’s constitution? A referendum, which was explicitly stated to have no legal effect clearly is not enough. So it needs some legislative and or executive action. It seems perfectly rational, and European(?), for the response to the break up text from Dave to be “no you can’t do that”- and for Angela to mean it…

    • Dan Law
      June 28, 2016

      It is an important question where responsibility for this lies. I would guess that if notification is from a minister, they would be presumed to have authority. If Art 50 was triggered without proper authority with rights under EU law breached because of an invalid withdrawal, who would be liable? It would be for ECJ to decide. I’d think UK would be found at fault e.g. taking into account Art 4 and 5.

  67. stephen barker
    June 28, 2016

    66% of eligible voters did not vote to give up their rights under EU law. We do live in a representative democracy although the overall conduct of the current set beggars belief. The Foreign Secretary, William Hague’s written evidence to the Foreign Affairs Select Committee – implies the Prime Minister will renegotiate terms of the EU Treaties and put those to the electorate for acceptance. We did not get that question. For the legal eagles look at Germany 1933 for the steps to be taken to relieve the citizen of their rights through the courts. Once the Executive seems unchangeable and the process of erosion of the citizens constitutional rights has a veneer of legal authority all is lost. I took some comfort from the Supreme Court decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 which brought the dissenting judgement of Lord Atkin in Liversage v Anderson [1942] A.C. 206 forward as an authority. So the Executive and Prime Minister cannot make it up as they go along. Royal Prerogative could, in the hands of any Prime Minister or Minister easily be described as Humpty Dumpty as referred to by Lord Atkin.
    Lord Atkin on the role of the judge; “In England, amidst the clash of arms, laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law” It seems to me Messrs Barber, Hickman and King make a plausible argument the Prime Minister is capable of being challenged on his intention to remove rights conferred on the majority of UK citizens who have not accepted or agreed to their loss which will occur if the UK withdraws from the EU.

    • Marty Caine
      June 28, 2016

      So because democracy returns a result that you disagree with, you want to ignore it and count the non-voters in with the leave to create the result you want?

      I suppose using the same system I can say that the majority of people in Scotland did not vote to Remain because the total number of Leave voters + non voters would be far higher than the Remain count.

      You appear to want to destroy the very democracy that the majority voted to keep.

      The repeal of ECA Act 1972 is yet another nonsense desperation argument because there is no majority government that could implement that anyway.

      • Rosemary Mulley
        June 28, 2016

        The referendum was expressed by Parliament to be non-binding, advisory. We live in a representative democracy in which Parliament is supreme. Do you deny that this is still the constitutional law of the United Kingdom? Has any democratic process taken place which might have changed this law?

      • stephen barker
        July 12, 2016

        There is a significant difference between changing a persons current position of known circumstances and a vote to step into the unknown. Those who want to bring about peaceful change that affects the lives of everyone else should be in a clear majority of all persons affected. The referendum on membership of the EU did not achieve that with 34% of those eligible to vote.

        The Scottish example is the opposite of what you say. Those who wanted to bring about peaceful change that affected all who live in Scotland did not obtain a majority and to calculate by how much they missed that target those who did not vote should be added to the remain group as clearly not voting to leave the UK.

        You are a UKIP supporter and you have a clear objective of the UK leaving the EU club. I do not share that view. Neither do I want to destroy democracy. Quite the opposite I want effective representative democracy – not the kind of abdication of responsibility we have experienced on this topic. The UK Parliament is still the seat of government in the UK and has been during the UK’s membership of the EU. It might have been convenient to some members of Parliament to divert domestic criticism towards the EU, but Parliament has been the place where most decisions affecting our lives have been made. That has been the case throughout our membership of the EU. Two examples of no involvement of the EU are the NHS which affects so many of us and is entirely with the UK Parliament. The waging of war is entirely with the UK Parliament. Are these policy areas mishandled? As far as the last major deployment of troops is concerned Chilcot says yes. As for the NHS it would collapse but for the 138,000 non UK citizens who work in it. We are still advertising worldwide to recruit additional staff. The UK continues to recruit non EU citizens on a 2 year programme to full citizenship scheme if they have skills the UK has set out the UK needs. Not unreasonably the UK allows dependents to enter after an initial period to join the person who initially arrives. This simply proves we have skills gap. The fault or lack of planning to improve that skills gap is with the UK not the EU.

        Your last point on changing primary legislation is just plain wrong. Legislation is changed all the time involving the repeal of existing or earlier legislation. The idea is we improve and adapt our law to meet social circumstance through the process of representative government. The same thing happens in the EU even though the EU is not a sovereign state. It functions as a collective of Member States and in over 90% of decisions of the Council on Ministers from those Member States the UK has voted with the majority. So whatever the shortcomings of the EU in the last 40 years the UK has played its part.

        As you might expect I think the shortcomings of the EU are over stated by those like yourself who simply have no enthusiasm for the UK membership continuing. We have forgotten the times when UK workers were going to the EU under the freedom of movement rights obtained by EU membership. So many were going it inspired a TV drama / comedy programme Auf Wiedersehen Pet (1983), to be made. Net migration from the UK was evidence of UK citizens voting with their feet.The general economic outlook was not good for the UK.

        The UK has come along way since then. Being in the EU has made a significant contribution to that journey. To say it has not is plain wrong. I freely admit I am desperate in the sense – desperate (irretrievably) that the UK should not squander its gains on a ‘project’ of leaving the EU which has no detailed plan, no strategy, assumes full co-operation of the EU and the rest of the world to help the UK succeed. Why would they? Self interest is often the answer. That usually only applies when an economy is growing not when it is contracting as the UK has begun to and will continue to. The contraction will gather momentum, the asset strippers will arrive to cherry pick the best and this time UK workers will not have the right of free movement to go and work in the EU. It is all so desperately unnecessary.

    • Jane Bigger
      June 29, 2016

      Ref Stephen Barker comments on ” 66 % of eligible voters did not vote to give up their rights under EU law. ”
      Can I , as an EU citizen , or a group of us, then, challenge the PM on his intention to remove rights conferred on the majority of UK citizens who have not accepted or agreed to their loss which will occur if the UK withdraws from the EU.
      Or can this be challenged in the EU court ?

      Or can I make a challenge that misinformation in the Leave campaign will lead to loss of rights afforded to me as an EU citizen ?

      Not a legal professional as you can tell but would very much appreciate your advice.

      thank you

      Ms J Bigger, Cambridge

  68. Philip Wright
    June 28, 2016

    There are a lot of posts so excuse me if I have missed this already. The EU will eventually make Parliament and the Crown defunct with both having no real powers to defend the rights of the British people or the economy. Are there any laws that prohibit this happening and my even require the government to trigger article 50 as by doing it the sovereignty of the UK would be protected.

    • tiddk
      July 1, 2016

      “The EU will eventually make Parliament and the Crown defunct”. Can you please quote me your sources for that statement? (The Daily Mail and The Sun newspapers I do not accept as valid sources of course.)

  69. Richard
    June 28, 2016

    One thing that currently worries me is the thought of UKIP gaining power. There is a vacuum in Westminster at the moment, and in a snap election voting may be split across the three parties. Some on the Far Right are concerned that there may be attempts to derail Article 50 and are encouraging their followers to vote UKIP in order that it be enacted. The gutter press may also stoke tension and blame all issues encountered on the delay in invoking Article 50.

    If UKIP come to power then they will not only push the button but will metaphorically smash it with a large axe. They can also claim that it is their manifesto commitment to do so, which previous governments have used to take The Lords out of the equation. Very worrying indeed.

  70. Mike Fearon
    June 28, 2016

    The Vote Leave leaders have already said the first task is to repeal the 1972 Act. If that is achieved other repeals or amendments are not urgent. If Parliament repeal yes Act, other repeals and amendments can wait. If the government cannot, or will not, get this repeal passed, that would be a reason, and the right time, to call an election. It is simpler and more sensible thanthisproposal, and there should be no serious legal or constitutional objective to theGovernmentgivibgnoticeubderArticle 50. Any views from the authors?

    • Marty Caine
      June 28, 2016

      As there is no majority government there can be no repeal of laws, you would need to have another election and hope that on party wins an overall majority, which is highly unlikely with the state of the parties at the moment, so we would end right back at square one, the only legal and sensible way we can leave the EU is via Article 50 and that needs invoking sooner rather than later.

      I can’t seem to find anything at all in the Referendum Bill that goes beyond the point of actually holding it, there doesn’t seem to be anything about what happens after the result. Maybe I’m just brain fried ?

      • Mike Fearon
        June 28, 2016

        I think you are agreeing that if the government were to be unsuccessful in repealing the 1972 Act, there would be a need for an election, and a sufficient number of MPs would support a date prior to the end of the five year term. I think it premature to assume that there would be no majority in theCommons for repealing the 1972 Act.

  71. Dan Law
    June 28, 2016

    It’s a pity that this legal question about whether Parliamentary consent is needed for valid withdrawal is seen in terms of an attempt to stop brexit (probably links e.g. from Guardian). It would be good to have a discussion focused on legal analysis of this question of constitutional law rather than political reactions to the possibility that this might be required.

    If the UK is going leave the EU, there needs to be a valid withdrawal. If there isn’t a valid withdrawal, the UK remains in the EU and may become liable for billions in compensation for breach of rights. It is essential to effect a proper legal withdrawal, and an important legal question has been raised about the process for this.

    • Robmod
      June 28, 2016

      I agree in principle but law is used adversarily and so it is unlikely that most people here making a case for one view or another aren’t silently advocating for or against Brexit. Yet I imagine most lawyers could advance a contrary view if pushed to do so. I think it highly unlikely that anyone in the commission is going to make a judgement as to whether our “constitutional requirements” have been met after our then PM triggers Art 50, (if he or she actually does) whether he or she consults Parliament before the trigger or doesn’t. (It has merely asked for notice). It seems clear that this question of constitutional legitimacy must be decided, practically, before such a trigger. But there does not appear to be any evidence that anyone in the legislature or the executive has even acknowledged that a question exists as to whether use of a prerogative is constitutional. Conversely, Geoffrey Robertson QC has raised the issue in the media differently. He is firmly of the opinion that your view is the correct one. But more than that, he seems to assume that the question is already decided and that of course it is true that the executive must and shall seek Parliamentary consent and cannot proceed without it.

  72. Robin Evans
    June 28, 2016

    I note several references to ‘calling an election’.Under fixed term parliaments is that not difficult to orchestrate?

    • Peggy
      June 30, 2016

      I believe under this Act, Parliament may vote a resolution calling for early election, or this can happen following a motion of no confidence, at the end of the 14-day period, in case no PM is found who can secure the confidence of the Commons.

  73. Pingback: Pulling the Article 50 ‘trigger’: Parliament’s indispensable role

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  75. Michael Lyon
    June 28, 2016

    One presumption made at the top of this discussion is that the trigger of Article 50 will be irrevocable (or at least subject o the consent of the EU Council). But is this so clear cut?

    It would seem to rule out the possibility a genuine change of mind by the departing member state, which one could envisage in some circumstances as a reasonable – if annoying – consequence of the progress of the negotiations, or of a change of their will as democratically arrived at.

    I would understand the purpose of Art 50 as being to provide some protections both to a member state and to the EU in the event of the member state wanting out. It ensures that the MS need not be strung along indefinitely; equally, it has sensible provisions as to how the EU negotiates that.

    Now, of course, it would be naughty if the MS used Art 50 to extract concessions that it could not agree through the normal procedures; and it would be annoying if they flip-flopped in a irresolute way, letting everyone down. So one would be conscious that there could be abuse of Art 50, and therefore that MS’s ought not be encouraged to use it lightly. But it would seem to be rather a strong jump to understand that Art 50 would actually outlaw these behaviours, the one mendacious and the other inconsiderate, if that also had the effect of preventing a genuine evolution of purpose. One might expect that other sanctions would be effective – damage to international reputation and so on. Moreover, the point of any negotiation is that it is the search for a form of agreement that all parties agree on, which will not be obvious ex ante, and cannot necessarily be presumed to be regarded as always as attractive as on outset. In other words, parties can walk away, or they can get talked out of it.

    • Robmod
      June 29, 2016

      According to Professor Derrick Wyatt QC in evidence given to The European Union Committee, the U.K. can change its mind freely AFTER invoking Article 50:

      Can a Member State’s decision to withdraw be reversed?

      We asked our witnesses whether it was possible to reverse a decision to withdraw. Both agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect. Once the withdrawal agreement had taken effect, however, withdrawal was final. Sir David told us: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.” Professor Wyatt supported this view with the following legal analysis:

      “There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.”

      Para 10; pp 4/5

  76. Eric Clive
    June 28, 2016

    This is an interesting and impressive debate. I suspect that in practice, and to avoid awkward questions like “Show me your constitution”, a future Prime Minister would seek the authority of Parliament to trigger article 50. Parliament would be unlikely to refuse such authority unless it was a new Parliament with a clear mandate to do so. As UKIP would call “Foul” if an attempt was made to let a general election (on a different franchise and system) trump a referendum, the mandate to the new Parliament would have to be to refuse consent to an art 50 trigger only if that was authorised by a second referendum. So, for England and Wales it is difficult to see any alternative to exit other than a second referendum. For Scotland there is the option of an arrangement under article 50 which would allow a newly independent Scotland to remain in the EU. My question for international and constitutional lawyers is this. Would a unilateral declaration of independence suffice for this purpose, given that there would be prompt recognition by 27 States and a significant supra-national organisation?

    • tiddk
      July 1, 2016

      Sadly (for Scotland) the entire edifice of EU membership, laws and treaties applies to a single entity known as the “UK”, of which Scotland is a part. A unilateral declaration of independence would in effect create a new nation as far as the EU was concerned – one which would have to apply for membership, however sympathetically that was received by the 27 member states.

      One complication that would arise is that the citizens of the new state are also – for the time being – actual existing citizens of the EU who do not wish to leave it.

      “Bag of worms” seems inadequate to describe the legal niceties involved.

  77. Pingback: Write to your MP now to make sure Parliament decides Britain’s future | The Chaos Chronicles

  78. Pingback: Write to your MP now to make sure Parliament decides Britain’s future | The Chaos Chronicles

  79. Roger Panton
    June 28, 2016

    What is the Constitutional Requirement? Where can it be found?

  80. nev knight
    June 28, 2016

    The people have spoken and have said leave,this is the answer of the majority and before you say its not legal,remember the 1917 Russian revolution,was that legal or the majority speaking out?

    • Robmod
      June 28, 2016

      Explain how you arrive at “the answer of the majority” from:

      1) Population: 65,100,000
      2) Electorate: 46,500,101
      3) Leave vote: 17,410,742

      • Ted Hughes
        August 3, 2016

        Remain 16,000,000 ish
        Not bothered 13,000,000 ish
        So where do you put the not bothereds?
        This happens in all elections the not bothereds are nearly always the majority, the referendum proved to be different

      • Tom Austin
        August 5, 2016

        Liberal (Representative) Democracy [LRD] is not Direct Democracy [DD] and DD is not LRD:There is a common difference between custard and gravy.
        At [LRD] elections the majority is almost always the vote that did not win – and the ‘not-bothered’ are counted on the win side.

    • Tom Austin
      June 29, 2016

      Ah yes, the year 1917 – I’m pretty sure there was one Nev. And a 1962, that was (approximately) the year I heard people being asked (when I was at school):
      What is heavier;A ton of coal or a ton of feathers?
      People spoke then too – quite a number plumped for ‘coal’, some for ‘feathers’.
      Man the barricades?

    • tiddk
      July 1, 2016

      “The people have spoken”. Interesting. 17 million have spoken, though many have since said they would have voted the other way, having been fed clear lies by the Leave campaign. In any case, it’s hardly a resounding clarion call.

  81. Chris
    June 28, 2016

    Taking into consideration the apparent disregard for the Will of the People, it would be proper to try and find a constitutional mechanism that leaves triggering article 50 down to Oliver Cromwell.

    • Tom Austin
      June 29, 2016

      Chris, your rational works also for the actual abandonment of common sense (Clapham omnibus-wise), though I might drag Thomas Cromwell in to sort things out.
      How could one invoke the will of anybody, after stupefying them?

  82. Stefan
    June 28, 2016

    Many people are disagreeing on what the correct Article 50 procedure is. Let’s assume that Britain attempts to give an Article 50 notice but that someone else thinks that the notice isn’t valid and takes it to court. What would happen now?

    First case: Britain attempts to give an Article 50 notice in 2016. Someone appeals, but the legal system is very slow, and the final instance doesn’t make its ruling until 2020. What is the result?

    If the 2020 ruling says that the 2016 notice was valid, does this then mean that Britain left the European Union in 2018? This would create a lot of disturbances between the exit date in 2018 and the date in 2020 when the ruling is made public as people wouldn’t know whether Britain was a member of the European Union or not at that time. For example, it would be unknown if votes cast by British MEPs are valid or not, and whether British citizens would be able to vote in the European Parliament election in 2019.

    Second case: Britain attempts to give an Article 50 notice in 2016, and leaves the EU in 2018. In 2019, someone in the UK or the EU argues that the United Kingdom still is a member of the European Union as no valid Article 50 notice has been given. This case goes through the legal system, and the highest instance finally rules that no valid Article 50 notice has been given. What happens now? Does it mean that the UK suddenly is back in the European Union, and that European Union treaties have to be retroactively applied? This would also create lots of disturbances.

  83. Dr Frederick John Wilmot Taylor
    June 28, 2016

    I am not legally trained but I have been following this debate with interest and concern. I note the comment made under Pingback that people should write on this issue to their MP.

    I have already written to my MP (text below), and would appreciate advice as to whether my letter is appropriate and indeed strong enough in relation to my belief that Parliament has the sovereign role in this matter.

    Dr F J W Taylor

    Text of letter:

    > May I begin by expressing my great sadness at the outcome of the Referendum about membership of the EU. I am particularly concerned about its implications for the British economy and indeed for the future continuity of the United Kingdom.
    > I hope that you and your colleague MPs will keep in mind that the Referendum result was really too close to form a basis for such a significant change that leaving the EU would entail. Thus I hope that this will lead to ways of negotiating an accommodation that can enable us to remain in the EU. This is not simply to set aside the outcome of the Referendum, but to reflect that any Referendum can only be advisory and that it is only Members of Parliament who can exercise the executive and sovereign authority to decide the future of our country.
    > I believe there are always ways of achieving compromises that can meet the demands of all concerned. For example, on the free movement of labour I am sure that changes such as the requirement for those seeking to move to have a formal job offer before they are allowed to move. It would seem that Mrs Merkel and other EU leaders may well support such proposals.
    > May I conclude by suggesting that before final decisions are made to enact Article 50 and to leave the EU that MPs seek a free vote in the Parliament to ensure that the sovereign decision of Parliament is properly stated.
    > I look forward to receiving your views on these comments.
    > Yours sincerely,
    > F John W Taylor

    • tiddk
      July 1, 2016

      Looks good to me – have you thought of submitting the text of your letter to 38 Degrees so that many more can follow your example?

  84. jnsm5
    June 29, 2016

    I too am not convinced by the authors’ analysis.

    An analogy to the present situation is the termination of war, which is a matter that may be determined by the Crown, even though Parliament may have previously enacted legislation premised on there being a state of war.

    For example, in the absence of statutory provision governing the matter, and in absence of a peace treaty, the last war with Germany was formally ended by notification on 9 July 1951 (

    By ratifying the Lisbon treaty in 2008, Parliament expressly approved and gave effect to the Article 50 withdrawal procedure; likewise, as others have pointed out, the EU Act 2011 does not purport to place any restriction on a notification being given (in stark contrast to the numerous specific restrictions that it does impose).

    As a practical matter legislation would be needed sensibly to implement a withdrawal; but this does not mean there is any legal requirement for Parliament to be consulted before any notification is given under Article 50. There is no question of any affront to constitutional propriety, since Parliament expressly put the question before the electorate by enacting the 2015 Act without reserving to itself the right to be consulted before the giving of any notice to withdraw. Any practical difficulties would need to be resolved by political discussion and diplomacy.

    Moreover, even if notification were given only after consulting Parliament, one might still have the case of a general election within the two year period, producing a subsequent Parliament being averse to withdrawal, and which refuses to enact legislation to implement it.

  85. richard jarman
    June 29, 2016

    1. Parliament must decide to trigger Article 50 (A.50); by a full Act – this will have to pass both houses, the Parliament Acts may be invoked?

    2. The Scottish self governing settlement imposed EU law on Scotland, it did this in the course of altering Scottish constitutional arrangements & altered the Act of Union; this was consensual but operates to divest parliament of sovereignty thereby. The UK has thus subrogated its sovereignty. At first glance grabbing back sovereignty using A.50 may appear to suffice. No; only if the mechanism (if any) allows Parliament to amend the devolution legislation. Otherwise there must be consent of the devolved administration.

    3. In Northern Island the same applies. However, here there were intricate agreements involving the Eire government. Not only is UK sovereignty subrogated in the N. Ireland devolution settlement but also separate agreements operate with Eire. A. 50 cannot alter this. N Ireland & Dublin have to agree.

    4. In the absence of agreement with Belfast & Dublin we have an open border between Eire & N. Ireland; but more to the point N Ireland remains part of the EU & the UK, we cannot have an internal border? Can we?

    5. Dicey (the fount of constitutional theory) would say that changes of the magnitude envisaged by Brexit & the above would require a general election; so also in respect of any A.50, or replacement, treaty. MPs are representatives but the theory goes that although they are free to decide & are not delegates; profound & fundamental changes need an electoral opportunity?

  86. John Nurick
    June 29, 2016

    Two questions that don’t seem to have been addressed in this fascinating thread could perhaps make the question of Parliamentary authorisation moot.

    Suppose HMG uses (or purports to use) the prerogative power to invoke Article 50:

    1) Is the Council obliged – or even competent – to interrogate the notification to determine whether it accords with the UK’s “own constitutional requirements”?

    2) Who if anyone has standing to argue that the purported notification is ineffective because it does not so accord, and before which court?

    • Dan Law
      June 29, 2016

      Articles 4 and 5 TEU indicate that this is responsibility of the member state. If there was not valid notice and only purported withdrawal, we would still be in the EU and liability for breach of rights would almost certainly fall on UK. Ultimately, that would be for ECJ to decide.

      The Commission may however have duty to interrogate the validity if the matter is raised e.g. by way of complaint or petition. This could follow the infringement procedure:

      The irony in this is that EU Commission, Council and Parliament have reacted as if there has already been a ‘decision’ in terms of Art 50 (not yet notified), when this is the issue in question (see Prof Phillipson above).

      Others here would be better able to comment on court proceedings, but it might be that this could be done ‘pre-emptively’ by application for declaratory relief in judicial review in UK High Court. If there is question as to meaning or application of Art 50, then unless the correct answer is beyond doubt, this should be referred to the European Court of Justice (see ‘preliminary reference procedure’). Case C-213/89 (Factortame) supports making an application for interim relief to prevent a purported notification without Parliamentary approval predjucial to rights under EU law. If granted, this would mean that pending final judgment, Art 50 could not be triggered by the UK without Parliamentary consent. Even if expedited, there would not be a final judgment anytime soon, particularly as this might go to appeal, perhaps eventually to UK Supreme Court before reference to ECJ.

      Such an outcome could give UK a stronger negotiating position and might not be entirely unwelcome by HMG.

      However that is getting far ahead as the relevant legal questions are not yet clear (e.g. as I see it, issue is to do with the meaning of Art 50(1) and scope of ECA s.2(2) rather than royal prerogative). It is not yet even clear that this has any legs at all.

      • richard jarman
        June 29, 2016

        One reason why the prime minister looked so smug when at the dispatch box after the Brexit result must be that all these points have been on his desk for some time.

        Will the Supreme Court judges have to forgo a summer vacation?

  87. The Smiling Pilgrim
    June 29, 2016

    Amazing to see how Brexit is exploding the blogsphere.

    On wordpress right now these kind of blogs and people that post on this subject are just exploding.

    I just finished looking at one blog that usually had 3-4 comments on a post and went up to 1,060!

    For someone who writes on Theology and Volunteering it is so far out of my expertise but I wish all the people of the UK the best.

    I hope however it turns out that there isn’t big job losses or pain felt in families.

    There are some major political changes happening in the world right now and some themes that are deeply significant.


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  89. Barbara Anderson
    June 29, 2016

    Sorry guys you can argue black is white till you are blue in the face, as you seem to be doing here but unless you respect the referendum result and thereby the people’s wishes you are advocating the end of democracy. So accept for once that you have lost and help this country to move forward, stop your squabbling and trust the fact that we will be strong as a country if we pull together and respect the wishes of the majority who do not have hidden private agendas.

    • Tom Austin
      June 29, 2016

      Again: Wither Democracy without the rule of law? And, what sort of democracy can we lay claim to that determines our future in a fact-free fashion?
      In any case, I see no real difficulty in disappointing 52% than disappointing 48%.
      When every general election yields total control to a Party that some 70% did not vote for.

    • Dan Law
      June 29, 2016

      Ascertaining the legal requirements for withdrawal from the EU under Art 50 is not ‘advocating the end of democracy’. It is about upholding the rule of law which is essential to democracy. The law also needs to be respected.

    • Anthony Smith
      June 29, 2016

      Here, here! Having wasted over an hour reading the comments of individuals who are obviously not in agreement with the countries majority decision, I really do wish that people should look more positively on our future rather than the glass half empty approach that I’m absolutely fed up with hearing every time I turn my radio or TV on.

      • AS
        June 29, 2016

        *hear hear

      • Robmod
        June 29, 2016

        I keep hearing about a majority decision. But it was a simple majority of votes cast with no threshold requirement in a referendum with advisory status where 13 million people did not give their opinion and where the result relied upon the opinions of the over 65 age group. There are legal, constitutional, moral and intellectual issues in play.

    • Solange Lebourg
      June 30, 2016

      Are you only talking about the wishes of people in England and Wales? Under our constitution, the wishes of the people in Scotland and Northern Ireland must be respected, too. Why would they wish to pull together if their majority votes are ignored? Do you trust the fact that we will be strong as a country if they feel that there has been an end to democracy for them?

    • tiddk
      July 1, 2016

      “So accept for once that you have lost”. No, we have ALL lost and will continue to lose. The only difference is that those who voted for Brexit have yet to realise this.

  90. Since when did the democratic “advice” of the people become the “will” of the people?

    There should be a legal challenge.

  91. Dan Law
    June 29, 2016

    On reflection I think the argument put by Barber et al is misdirected.

    I have no difficulty accepting that Art 50 cannot be invoked by exercise of royal prerogative: that would be contrary to the Bill of Rights (which is the basis for the principle in the Tin Council case). However it does not then simply follow that Parliament must now give its approval before triggering Art 50 as the authors suppose. Instead the next question is whether this trigger is within the delegated authority in s2(2) ECA. Barber et al do not address this.

    As I see it, the scope of delegated authority under s2(2) is the real question here and use of the royal prerogative is a red herring. While it certainly could be argued that an Art 50 trigger is within s2(2), taking the modern approach to statutory interpretation, I don’t think the delegated authority extends to this. However until the s2(2) question is argued, I don’t think one can safely reach a conclusion on this. In my view the proper starting point to such an argument is ascertaining the meaning of Art 50(1) (compare for example Prof Phillipson on this as in his post above, and which I believe persuasively supports the conclusion that a decision by Parliament is needed).

  92. Francis de Aguilar
    June 29, 2016

    Reblogged this on the secret's out and commented:
    A must read about the legal implications of triggering Article 50 and leaving the UK.

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  94. Anthony Tamburro
    June 29, 2016

    Proposition 1
    Statute overrides royal prerogative
    Proposition 2
    Invoked article 50 can only lead to leaving the EU. There is no get-out clause
    Proposition. 3
    Leaving the EU will make changes to UK statutes
    Proposition 4
    Only parliament can make changes to statute and changes must be approved by parliament both commons and lords.

    Therefore the prime minister cannot invoke article 50 without parliamentary approval of a bill.

    What advice has the attorney general given to parliament?

    • Dan Law
      June 29, 2016

      Anthony – the conclusion does not follow from these propositions that you set out. This overlooks the question of whether a minister might invoke Art 50 not under royal prerogative, but pursuant to authority delegated by Parliament in ECA s.2(2) (an important difference). I do not believe this is within scope of s.2(2), but it has yet to be shown.

      I would consider the ‘proper purpose principle’ as in Padfield to be relevant. If Parliament had intended to confer such a power in s.2(2), it could have been expected to say so expressly. It would seem extraordinary for Parliament to make the reservations it does, yet confer a power which would render ECA nugatory. I don’t think it could be seriously suggested that Parliament intended to delegate its power to decide whether to withdraw from the EU and that this has been a matter of ministerial discretion all along. (I also very much doubt whether such an arrangement would conform to requirements of EU law, which in turn effects the interpretation of s.2(2)).

      If it is accepted that this power is not within s.2(2), and given that this was advisory referendum, there would then seem a sound argument that it is Parliament that must make the decision to withdraw and authorise invoking Art 50.

      Hopefully some of the experts in constitutional law might give their views on whether s.50 can be invoked pursuant to delegated authority under s.2(2) ECA.


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  96. Joseph Crampin
    June 29, 2016

    I disagree with your analysis of the constitutional requirements under Art.50 in relation to the ECA. First, neither of the cases you cite are in any way factually similar to the statutory arrangements under the ECA. Second, you make much of Parliamentary intent, which you largely assert, without engaging with its function as part of our dualist legal system. Last, in no way does ECA affect the prerogative power in treaty making, a point made clear in s.1(3), which you do not mention, and supported by the express abrogation of the prerogative in defined areas in the 2002 Act, 2008 Act, and 2011 Act.

    That said, I would be interested in your thoughts on the effect of the European Union Act 2011 on our ability to withdraw under Art.50.

    Under s.2(1) of the 2011 Act, any replacement agreement of either the TEU or TFEU must be approved by Parliament prior to ratification and, in certain circumstances defined in s.4, may also be subject to a referendum.

    Clearly the Art.50 procedure envisages a divorce agreement and this agreement would replace both TEU and TFEU. Therefore prior to ratification of the divorce agreement the UK an Act of Parliament would be required.

    In the first place, considering the 2 year timetable to agree a divorce agreement, this seems quite undesirable since Parliamentary squabbling within this period could result in Brexit without a divorce agreement. From a practical perspective, Parliamentary approval in advance of an Art.50 notification would seem sensible to me.

    Second, I wonder whether the act of triggering Art.50 would constitute an amendment to TEU and TFEU as it applies to UK which would itself require an Act of Parliament?

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  99. Robmod
    June 29, 2016

    On prop 1, is it really about prerogative or delegated authority?

    On prop 2 the problem is that the European Union Committee has took evidence from Sir David Edward QC and Professor Derrick Wyatt QC that we can withdraw notice under Art 50 at any time before we sign a withdrawal agreement. It accepted this advice and published on May 4th.

    “There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations. The political consequences of such a change of mind would, though, be substantial.”

    • Dan
      June 29, 2016

      Robmod –

      Re prop 1 – both prerogative and delegated authority need to be addressed.

      Re prop 2 – how would the possibility of unilaterally reversing the decision to withdraw present a challenge to the argument? (Is it suggested that royal prerogative may dispense with and suspend laws provided it is possible to reverse this before this takes effect?).

      As an aside, in these circumstances, it would be perilous to rely on the possibility of unilaterally reversing this decision absent a decision from the ECJ that this is the correct interpretation. The clear wording of Art 50(3) is that the treaties shall cease to apply to the state 2 years after notification (absent a withdrawal agreement or unanimous decision by remaining member states to extend). If valid notice is given, then how can the action of a single state disapply the consequence stipulated in Art 50(3)? Such an interpretation is also questionable as it would be to the advantage of the withdrawing member, encourage states to try their hand with negotiating withdrawl terms with nothing to lose, and would be contrary to ‘ever closer union’.

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  101. Karl Napp
    June 29, 2016

    If it turns out that parliamentary consent is not compulsory, Mr Cameron might have triggered §50 already.

    • Robin Evans
      June 29, 2016

      Please detail your logic? He has explicitly stated he did not intend to trigger Art.50.

      • Clay Withers
        June 29, 2016

        By calling for the referendum in the 1st place.

    • Sean Feeney
      July 4, 2016

      Article 50 cries for a non-literal, purposive, and consequential interpretation given the stark asymmetry of rights in Article 50(4) between the member state that has made a decision to withdraw in accord with it’s constitutional requirements and the other member states of the European Union; and given that extending the two-year negotiating period is not in the gift of the withdrawing member state. Only the Court of Justice of the Euopean Union has competence to give an interpretation under European and domestic law (see section 3(1) of the European Communities Act 1972), if theissue is not acte claire to a domestic court. This should be clear to the UK, the othe member states and EU officials, despite their public pronouncements to the contrary.

      • Anthony Arnull
        July 4, 2016

        If one thing is clear about Article 50, it is that it cannot be triggered by accident. The European Council has said that it requires a formal letter from the PM or a formal statement at a meeting of the European Council that is duly recorded in the minutes. This must be right, given the solemn and momentous nature of the step in question. It is for the departing Member State to decide when its constitutional requirements have been satisfied and when to launch the Article 50 process.

      • Sean Feeney
        July 4, 2016

        Professsor Arnull perhaps we can agree that the European Council does not have competence to authoratively interpret Article 50; and that “triggering” is disticnt from an act of notification of a decision of withdrawal. The threatened litigation suggests it is for the domestic courts to decide when the constitutional requirements have been met.

      • Anthony Arnull
        July 4, 2016

        Yes, I did not mean to suggest that the European Council was competent to give an authoritative interpretation of Article 50, but I do think its interpretation is correct. The step is significant and it must be clear beyond doubt that it has been taken. This is surely the view the ECJ would take. ‘Triggering’ I take to mean the notification by a Member State to the European Council pursuant to Article 50(2) that it has decided to withdraw from the Union. I agree that it is ultimately for the domestic courts to decide when national constitutional requirements have been met.

      • steve
        July 4, 2016

        Except that the EUCJ may need to decide whether the EU Council can actually accept the article 50 notice that may not have been given in line with the constitution of the withdrawing country.

      • Mike Fearon
        July 5, 2016

        Assuming the 1972 Act is repealed somewhere in the process the views of the EUCJ will be irrelevant in domestic law. I think every serious participant in this discussion expects that repeal to happen if the UK is to leave the EU, either as a prelude to, or concomitant with, Notice under Article 50.

      • Anthony Arnull
        July 5, 2016

        For the UK to repeal the 1972 Act before or simultaneously with notification under Article 50 that it has decided to withdraw would be a breach of Union law and cast a shadow over the withdrawal negotiations and any future trade negotiations with third countries, as it would suggest that the UK could not be trusted to comply with its treaty obligations. The repeal of the 1972 Act cannot take effect until the EU Treaties have ceased to apply to the UK pursuant to Article 50(3).
        That having been said, I do not think the ECJ would be minded to investigate whether the constitutional requirements of the UK had been met if a formal notification of its intention to withdraw had been accepted by the European Council.

      • Mike Fearon
        July 6, 2016

        The proposal made during the Leave campaign, certainly by Dr. Fox, was that the 1972 Act would be repealed early in the process of leaving, I.e. before the finalisation of an agreement on future relationships, or expiry of the notice period. The expectation was that this would not change the direct effect of existing Directives in UK law, or of existing legislation to implement EU Directives in the UK. (The term “Directives” may be shorthand for a wider legal framework.). It would prevent new EU Directives (shorthand again) becoming effective in the UK during the “notice period”.

        Should this interpretation be valid, I am not convinced that this constitutes a breach of Union law, or casts any shadows. I am open to be convinced, but what is the breach?

      • Anthony Arnull
        July 6, 2016

        The ECA was enacted to give effect to the requirements of Union law in the UK. If it were repealed while we were still a Member State, we would still be bound by those requirements but they would not be recognised in UK law. Rules contained in the Treaties would not be respected, regulations (which do not require domestic implementation) would cease to have effect, there would be no legal basis for giving effect to unimplemented directives by which we are bound. There might even be an argument that existing national rules giving effect to directives would be rendered invalid unless preserved by new legislation. British courts would no longer be required to take account of the case law of the ECJ or to make references to it even when obliged by the TFEU to do so. So the result would be a comprehensive breach of our obligations under the Treaties. It would be likely further to antagonise the other Member States and make securing a good deal in the withdrawal negotiations even more difficult. In the long run, it might also affect our ability to agree good trade deals with third countries.

      • Stephen Laws
        July 6, 2016

        This discussion seems to be missing the point. There is a distinction between Parliament passing the Act to replace the rules in the 1972 Act – repeal is much too simple a description of what it would need to do – and the coming into force of that Act. The commencement of the Act, once it is on the statute book, could be on a date chosen by the Government. The real question – which I believe to be only a political and constitutional one, rather than a legal one – is how far Parliament should be asked to get on with passing an Act providing for the required legal changes on exit before the Government takes an arguably irrevocable step, with the Art 50 notice, to commit itself to the exit that will make such an Act essential and maybe determine the form such an Act needs to take.

      • Anthony Arnull
        July 6, 2016

        Yes, my comment was based on the assumption (as I think Liam Fox intended, though I may be wrong) that the idea was that the ECA might be repealed immediately. If the commencement of the statute repealing it were to be postponed until the UK ceased to be a member, things might be different. However, there seems little point in passing such a statute now, as we do not know what the outcome of the Article 50 negotiations will be or even what we will be seeking to achieve.

      • Tom Austin
        July 6, 2016

        For what it is worth: I agree, the legality arguments centre around the advisory/determinant duality of the referendum. And Cameron’s ill-timed alteration of the result’s standing. Given that many votes would have already been cast prior to his announcement.
        And, rather obviously, what is ‘arguably’ one thing is also arguably the other.
        As there is an ‘out’, post evocation of A50;can it be reasonable for any Government to resist involving Parliament until our unravelling is thought better of?

      • Mike Fearon
        July 6, 2016

        Please correct me if I am wrong, but is it not the case that the existing legislation would continue to apply to disputes arising prior to the date of repeal, and actioned after the date of the repeal. And is it not possible, if deemed advisable and necessary, to make the repeal effective from the date of withdrawal?

      • StephenLaws
        July 9, 2016

        Mike The default position on a repeal is broadly that set out in ss.15-17 to the Interpretation Act 1978 (principally s. 16). These substantially reverse the common law rule that you treat the repealed Act as never having been passed. But the default position can always be modified or supplemented by the repealing Act, and that is bound to be necessary and desirable in this case. So the position will be whatever Parliament says it will be subject only to the usual inhibitions on retrospection. All sorts of complex questions may arise. Some law originating in EU law is bound to need to be saved by the repealing Act for future operation, at least pending decisions on what to replace it with. So, for example, in the meantime should ECJ judgments remain relevant for construing it, or perhaps only Pre Brexit ones?

      • Mike Fearon
        July 9, 2016

        Apologies if I am missing something, but I think this answer addresses a different point. I am suggesting that, unless or until the 1972 Act is repealed or amended it remains extant. It continues to apply EU laws and Directives, and the general effect of existing Treaties. It, and other pertinent legislation, remains effective, irrespective of any notice given under Article 50, and even if the Treaties cease to apply under Article 50, until the effective date of any repeal or amendment. Therefore no conflict in terms of constitutional law arises from an Article 50 notice.

        I have previously suggested that in legal terms the Article 50 notice is no different from the statements of intention in the Queen’s speech. Any change to domestic law has of necessity to be approved by Parliament. Should Parliament refrain from repeal or amendment after notice expires or agreement is reached this would lead to a situation which would be absurd and confusing. In legal terms, however, there can be no objection to that. Parliament may legislate or not as it chooses. The Executive, if it has a power, may exercise it as it chooses.

        The political dimension may be different.

      • Stephen Laws
        July 9, 2016

        Mike Agreed We seem to have been at cross purposes. I thought you were referring to a question about what survives repeal once the repeal has come into force. I also agree that the main issue is not a matter for law. But the political/pragmatic question is affected by the issue whether it is appropriate “constitutionally” – or wise – for the executive to pre-empt Parliament’s consideration of the exit Bill by serving the Art 50 notice and so committing to exit on a particular date, and potentially on the default terms, without reference to Parliament and without some Parliamentary commitment to the legislation that will be needed. The Constitution Committee reported on the pre-emption of Parliament in a different context in 2013. And it’s quite likely that the issue, if it is put in play, would complicate getting a Bill through and increase the risks attached to that process.

      • Mike Fearon
        July 11, 2016

        It seems to me that Robert Craig has a thorough and well reasoned analysis.

      • Stephen Laws
        July 11, 2016

        Yes – it’s political and constitutional – in an unwritten, political constitution – but see my response of 29/6 to seething mead – expiry of Art 50 period does unimcorporate EU law.

      • Mike Fearon
        July 12, 2016

        Stephen (if I may), I think I understand what you are saying. However, I am not sure how the power to make implementing regulations derives from membership, particularly as the 1972 Act was passed (I believe) before membership. I have already been accused of sophistry, so perhaps I shouldn’t make too much of that.

        What I do agree is that there would be a potential for chaos if necessary appeals and amendments should prove difficult to achieve during or at the end of negotiations and notice expires and is not extended. It may be a matter of judgement as to whether more chaos is likely to ensue if the government invites parliament to deliver legislation prior to giving notice. I agree that repeal is too simple a term to describe that legislation.

        I have previously used the analogy of putting the cart before the horse. If parliament is tasked with backing the cart through the metaphorical gates to Article 50, I personally would expect a highly fraught journey. Perhaps this is one of those cases when it is quite helpful to have a political unwritten constitution.

      • Stephen Laws
        July 12, 2016

        Of course. I think we largely agree. It’s a balance. You may need to ask for wider powers if you legislate first, but there are also political risks in waiting to legislate until you are asking for approval for a fait accompli. The point about the regs is that the power in s.2(2) is for the purpose of implementing EU obligations of the U.K., or for the purpose of enabling EU rights of the UK to be exercised. Once we are out, the U.K. Is no longer subject to any EU obligations or entitled to any EU rights: so the basis for exercising the power has been removed – and so too, for the future – on the basis of the normal rule – is anything made under it, eg to implement obligations that no longer exist.

      • Mike Fearon
        July 12, 2016

        Yes I think we do agree on the practicalities and the political difficulties. However, I remain genuinely uncertain whether it is “mere sophistry” as Richard Jarman suggested, to say that Parliament can, if it chooses, legislate to accept treaties which are no longer binding on the UK. I can’t see that happening, but I do see a relevance if the argument being put is:

        The 1972 Act is rendered nugatory, either at the point of giving notice, or of “leaving” (in shorthand) in accordance with the terms of Article 50

        Therefore Parliament must authorise the notice (and perhaps repeal (in shorthand) the Act) before notice is given.

        I understand this to be the original premise in the Barber et al article. I originally argued that the notice does not render anything nugatory, although the nugation would occur at the point of “leaving”. Subsequently I expressed an uncertainty that there is, of necessity, any nugation. I accept that it would be ridiculous and chaotic for the Statute to remain unaltered, but is it legally and constitutionally possible? I consider the possibility exists, and that the original article therefore draws a conclusion which may not be established from the legal position, however valid it may be (or not be) from a political perspective.

        This might not turn out to be sophistry if a court takes it into account when considering a legal challenge to notice without Parliamentary approval. I believe courts have taken into account unlikely, but legally possible, courses of action before.

        I suggest it is also possible to argue that should notice be given and chaos results, there remains the constitutional sanction of the ballot box. This would be an undesirable result, and the government may wish to find ways of avoiding it, but I am not convinced that the courts are the most appropriate route to avoidance. I think at least one contributor has also suggested that a court might well take the same view.

      • Dan Law
        July 12, 2016

        Mike – I don’t see how the issue is to do with the effect on the statute itself. Isn’t the real issue about how this use of the royal prerogative would effect laws in the UK?

        The Bill of Rights 1688 concerns prohibition of the pretended power of dispensing with or suspending laws by royal prerogative without consent of Parliament. While ECA 1972 may remain on the books unaltered, invoking Art 50 so that the treaties would no longer apply to the UK would have far-reaching effect on laws in the UK. The text of the statute book might be unaltered, but laws in the UK would be dispended; laws would be set-aside, made of no-effect and brought to an end. How is a pretended power of doing that without consent of Parliament lawful and in accordance with the UK’s constitutional arrangements?

      • Mike Fearon
        July 13, 2016

        Dan I have posted a further reply to Stephen Laws, having realised I had not properly understood his comments on Section 2 of the 1972 Act. Yes it is about the extent to which prerogative overrides statute, but I agree with Stephen that it is a matter of balance. We cannot know in advance the extent to which existing rights and obligations under the statutes may be altered. Parliament and the executive have to make a judgement on the practical advantages of allowing the executive to lead in a process which may be too wide ranging and complex for Parliament to handle, as against the risk of Parliament getting railroaded.

        Personally I am not convinced that referring this judgement to a court will help anyone.

      • Dan Law
        July 13, 2016

        Mike, I’m not clear on what you are suggesting. If Parliament makes a decision to let the executive give Art 50 notice and lead the process, how is this decision taken? If Parliament passes legislation giving the executive this authority, then Parliament consents in accordance with the Bill of Rights. Not too much of a constitutional issue with that.

        But are you perhaps suggesting Parliament may be taken to have made this decision if it passively allows the executive to go ahead? Or is it that the executive may make this decision for Parliament? Or is it perhaps that the executive’s decision to proceed without Parliamentary process may be pragmatically acceptable e.g. because command of majority in commons or nature of issue, circumstances etc. makes this consent a foregone conclusion? – and the executive may decide when Parliament ‘s consent may be presumed i.e when actual consent is not needed (or when the Bill of Rights may be suspended).

      • Mike Fearon
        July 14, 2016

        Dan I am trying to avoid suggesting anything. I completed the first year of a law degree nearly 50 years ago, and I am hoping to return to complete it later this year. I am interested in the debate, but not particularly qualified to make suggestions. I believe the arguments are well summed up in the note from Robert Craig of the LSE.
        I have also seen (today) a succinct and pithy contribution from Kevin McAlpine which is worth many times its weight in legal debate.

        As to the political front, my personal view, for what it may be worth, is that the 1972 Act and subsequent legislation transferred power from Parliament to the EU and UK Executives on a very large scale. I consider it indisputable, as Prof. Dougan of Liverpool University made clear to millions during the referendum campaign, that this was a sovereign decision by the UK parliament on behalf of the electorate, subsequently ratified by referendum. However, 40 years on, the majority of the electorate seem to have found the results of that transfer of power unpalatable, or even unacceptable, in one way or another.

        The historic purpose of constitutions and legal constitutional frameworks (correct me if I am wrong) is to avoid excessive and unacceptable suppression of the will of the governed by the governors. Some would go further in this interpretation. It seems to me perverse to promote the suppression of the expressed view of the majority in this referendum through legal obstacles or parliamentary intervention. The perversity is emphasised when the objective is (as it appears to me to be) to prevent the executive from commencing the process of reversing the transfer of power effected by the 1972 Act and relevant Treaties.

        Without offering suggestions, I personally hope that the Executive will take the view expressed by Kevin McAlpine, and issue notice under Article 50 without delay. The extent of involvement of Parliament in the implementation of the intention expressed by the Executive then remains for resolution by those constitutional entities, hopefully without the need for interventions by the courts.

      • Mike Fearon
        July 13, 2016

        I didn’t read your comments in the light of the wording of the 1972 Act. Having refreshed my memory of it I see that 2(1) clearly states that the Act gives legal effect in the UK to rights etc. arising from the treaties. I must agree then that once the uk is not a party to the treaties, no rights etc. arise from them. Therefore this part of the Act must cease to have effect and is nugated. I see what you mean now.

        Where the UK has legislated under 2 (2) to implement those rights etc., there may be a continuing legal framework which may not be nugated. I think you may not agree on that but the issue may in any event be irrelevant. The original contention that the Act will, at least in part, be nugated when the Treaties cease to apply, is clearly valid. Apologies, I had not understood that.

        That takes me back to my original position, which is that a statement of intention by the Executive which will eventually nugate an Act passed by Parliament may not in itself be “unconstitutional” until that point is reached, and the actual consequences are evident. These may be of less significance than the possible consequences, and Parliament may find them acceptable. The statement of the intention may in practice alter the balance of power, however, and that may be unacceptable in political or constitutional terms.

        I remain of the view that this may be better led and resolved by political process, rather than through the Courts. Pesonally, I still don’t relish the prospect of Parliament driving such a wide ranging and uncertain process, but this is essentially a value judgement. Others no doubt will think otherwise.

      • richard jarman
        July 10, 2016

        Mr Fearon’s interpretation point:

        Article 50 is not simply domestic law or treaty. It triggers a disengagement. Our treaties & consequent laws are thereby divested. In this case effluxion of time with no intervening agreement abrogates treaties without the prerogative or parliament intervening. If our existing treaty partners are no longer engaged then our domestic law is altered simply because these partners are the opposite side of this divide.

        Mt Fearon’s point is mere sophistry:

        My point is that our EU membership has altered our constitution and this point is illustrative; we disengage by an agreement that must be legislated by reason of the above observation. The treaty says that disengagement is entered into according to the domestic constitution; which must be the existing constitution not one which pertained before the treaties.

        Changing domestic law is a parliamentary function, which must be undertaken by parliament.

      • Mike Fearon
        July 11, 2016

        It seems to me that the most thorough and best reasoned analysis is that by Robert Craig. Sophistry can be a subjective description, and applied to many arguments, including mine and your own.

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  108. James Brooke
    June 29, 2016

    What rights do we citizens have if a PM were to attempt to invoke Article 50, without an Act of Parliament? Could there be a legal challenge and if so how might this be mounted.

  109. Nick
    June 29, 2016

    I’m a little surprised that this analysis doesn’t deal with either the Constitutional Reform and Governance Act 2010 or the European Union Act 2011, both of which set out when Parliament has a role in relation to international relations/EU treaties, and neither of which requires Parliamentary endorsement of an article 50 decision. The fact that Parliament decided twice in quick succession (and again in the EU Referendum Act 2015) not to make article 50 subject to its approval is likely to weigh heavily in the court’s mind.

    • Sean Feeney
      July 6, 2016

      Nick, schedule 1, part 1 of the European Union Act 2011 does appear to list “Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU)” as one of the”Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum”. (See sections 4 and 6 of the 2011 Act).

      The omission from the schedule of Articles 50(1) and 50(2) is consistent with the statement in paragraph 5 of the explanatory notes (which “do not form part of the Act and have not been endorsed by Parliament”) thart Part 1 of the 2011 Act makes provision for decisions “if these would transfer power or competence from the UK to the EU”.

      Articles 50(1) and 50(2) appear to be about removing power of competence from the EU by withdrawal and ending of current treaty obligations. Only at the stage of Article 50(3) would power or competence appear to be transferred to the EU, and then only on the “entry into force of the withdrawal agreement”, if such an agreement is negotiated, and membership of the EU has not automatically ended after two years without agreement.

      It’s quite likely that the discretionary power of a Minister of the Crown to ratify a treaty despite a Parliamentary vote against ratification, subject only to a duty to give reasons, in section 20(8) of the Constitutional Reform and Governance Act 2010 will be discussed in the claim now issued on behalf of Deir Dos Santos, if it proceeds to a hearing, and in the two other claims publicly known to be in preparation, if they are issued and proceed to a hearing:

      “20(8)The treaty may be ratified if a Minister of the Crown has laid before Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.”

  110. 0101010011010100101d
    June 29, 2016

    When did we vote to give a PM this kind of executive power?

  111. Clay Withers
    June 29, 2016

    It would seem we are in a catch 22 situation. With a majority of MP’s not wanting to “leave nurse”. The majority decision of the people not being accepted by a Parliamentary vote would be a slap in the face to the majority that voted to leave. And there could be a whole new tranche of MP’s in place after the next general election. Our leaders who have signed us up into this Pandora’s box (a legalalistic strait jacket); have departed scot-free(some in House of Lords!). This could lead to civil war, not that I would be an advocate of that, but given circumstances that may prevail, and I would have no say in the matter being as a voter, of no consequence to egotistical leaders, but I would of course be blamed. I was not able to vote in 1972, and of course the electorate had no idea what was really going on, I voted in 1975 under the deception that this was just a trading agreement, by the time of the Maastricht Treaty being signed by John Major’s government, I was aware of what was going on, and called for a referendum, even protested outside Parliament, before I was kindly moved on by a sympathetic natured Policeman, after I was invited to join UKIP, which I declined, as I had already joined another party, the party of our Creator, whose signs through the prophets are already becoming evident. I will leave the commenting at this juncture as I feel I have said all I need to say. The genie is out of the bottle, can it be put back? Simply put, no.

    • 0101010011010100101d
      June 30, 2016

      Democracy is far more than voting. The idea of voting in democracy is dead when the public are being grossly misinformed..

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  114. Mike McNutt
    June 30, 2016

    I do not have a serious appreciation of Constitutional Law, still I must question why this discussion seems not to have even begun within the Civil Service. I believe that it is critical that all of the UK remains a dynamic constituent of the EU. That we had the ground swell of voters looking for Brexit can only be a consequence of poor governance over many years, possibly beginning with Mrs Margaret Thatcher. That we should import cheap labour on so grand a scale without planning for the infrastructure to support that growth in our population was reckless. I support those of you who are actively looking to check the dangerous position we have now reached. I wish that challenge every success and will seek out and promote, amongst like minded friends any Crowd Funding initiative.

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  116. Adrian Chaffey
    June 30, 2016

    My constitution law studies were some time ago, but I was sceptical when I read about this article in the press. Having now read it and many of the comments on it, it looks like wishful thinking to me, as others have already said.

    But I suspect it is also of marginal relevance. This is because triggering A50 is going to put the UK in a very weak negotiating position, and if anyone in the UK government has any sense [okay, I know) they won’t be doing it any time soon.

    What they will try to do, I think, is negotiate something outside A50, and then, if procedure requires it, give the A50 notice once they have got a deal.

    I’m aware of course that EU leaders are saying they won’t negotiate until an A50 notice has been given, but I suspect this is not a position they will hold to. There will be talks, because they will not want things to run on indefinitely.

    • Littleislandsod
      July 14, 2016

      I think you are wrong. The EU are in the much stronger negotiating position. They can just wait it out until the UK sees the error of the decision and the negative impact it is having on the uk economy, and they can then dictate the terms of tell the uk to bugger off and be the little island on the backbenches of the world stage. The problem is too many older uk people still think of the U.K. As this major country in the world arena. It’s not they died a long time ago – about 40 years ago or so.

      • It doesn't add up...
        July 18, 2016

        Alternatively, the UK can just wait until some of the political realities start to bite in the EU, beginning with the Austrian presidential election, Hungarian referendum on migrants, Bulgarian and Romanian elections, Geert Wilders’ PVV becoming the largest party in the Dutch election next year as Rutte is consigned to the scrapheap, the French presidential and Assemblée elections, the German and Czech elections, the next stage of the Eurozone crisis in Italy and Greece (and Portugal and Spain), the aftermath of the Turkish failed coup, early elections in Italy, Ireland and Spain…

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  118. Christian Agi
    June 30, 2016

    David Pannick, QC seems to share – accordning to the Title and reports on twitter – the opinion of the authors in an article in today’s Times (which is of course hidden behind a paywall so I couldn’t read it):

    • Constitutional Law Group
      June 30, 2016

      Yes, he endorses the key arguments on Article 50 and the incompatibility of the use of the prerogative to trigger Article 50 with the scheme in the ECA 1972.

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  120. Alistair
    June 30, 2016

    Is “very formalistic analysis” legal speak for “It’s logical, but we don’t like it?” I’d treat reasoning of this order more sympathetically if the authors remainer prejudices didn’t shine through in every other sentence. Can’t a treaty be made which allows for its own abnegation by executive prerogative? Of course it can, and many have been. […] Oh, yeah, bring on a judicial review, if you can find a high court judge with a serious, some might say foolhardy, appetite for risk. Let us imagine how well received a court ruling will be that seems to defy the will of the British people in a referendum, no matter how finessed your arguments. I hope there are no lampposts on your way home, your honour.

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  124. David Campbell
    June 30, 2016

    In the end, the question is who rules? It is unarguable that there are those, such as David Lammy MP, who believe that sovereignty of Parliament means that Parliament (or even MPs), not the electorate, is the political sovereign of the UK. One can understand the attractions of this for Mr Lammy. But is it now part of the most sophisticated constitutional law scholarship that Mr Lammy’s views are fundamentally correct?

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  126. Andrew
    June 30, 2016

    Very interesting reading (I love constitutional law). But the whole issue would “go away” if the PM were to submit a bill before parliament, and win it, that grants him/her the authority to issue a notification under Article 50. So why would a PM _not_ want to do that?

    • Dan
      June 30, 2016

      Good question – why not just get Parliament to authorise invoking Art 50? Perhaps because statements made by politicians and media gave many people the idea that the referendum was binding, and many would see ‘giving’ Parliament the power to decide as an attempt to subvert the referendum result. In short, they don’t trust Parliament.

      In this political train wreck, circumventing the constitutional democratic process and rule of law may thus seem politically expedient given potential for massive political backlash. If there is good colourable basis for invoking Art 50 without Parliament’s involvement, this might well seem the way to go for the next PM (see for example Mark Elliot’s blog which makes a skillful argument). Most (including EU) readily suppose that all that is now needed is for the PM to give formal notification of the referendum result and that Art 50 is being invoked. Hence there is every possibility that the first act of ‘getting our sovereignty back’ is an act of constitutional vandalism trampling over the Bill of Rights and undermining Parliamentary sovereignty.

      In these circumstances, politically, and constitutionally, the best way forward is a legal challenge so that it is then the courts which decide whether Parliamentary approval is needed or not, with politicians thus avoiding having to take responsibility for this. This might not be entirely unwelcome as this might give HMG a better negotiating position with the EU. Better yet, it seems the matter could require reference to the Court of Justice of the EU, and so it might be left to the CJEU to decide that Parliamentary approval is needed to trigger Art 50. Then the EU can be scapegoated, Parliament can rise to the occasion, and, with any luck, we avoid a rabid populist constitutional reform movement that could pose a very serious threat to the UK’s Parliamentary democracy.

      Ordinarily what you suggest would be very sound and sensible and by far the best thing to do, but the politics of constitutional law need to be taken into account also (‘public policy considerations’).

      • Tom Austin
        June 30, 2016

        My apologies Dan, for sticking this here, but as you made mention of Mark Elliot’s (erudite) blog…
        Somewhat in passing ME says this…
        “For all that the UK has experimented with direct democracy through the holding of a referendum on EU membership and on other constitutional matters, the UK remains, fundamentally, a parliamentary democracy, and it cannot plausibly be argued that the referendum substitutes for proper parliamentary involvement.”

        I am of the mind that the UK has made more than one ‘sort’ of experiment in Direct Democracy – none of which bear much relation to what occurs in the Western states of the US.
        [There are two distinct varieties of DD experiment.]
        -Consultative – opinion gathering.
        -Decisive – policy setting.

        If it was thought necessary to stipulate the distinction in the latter case; with the vote on AV. Why is it assumed to have been entirely unnecessary to do likewise in the recent EU referendum?

        I have been arguing the toss about the EU referendum with diverse others for months. Conversation upon conversation took place with nobody voicing the least belief that the result would be policy setting.

        I am ‘unpleased’ – I say in passing.

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  129. steve
    June 30, 2016

    Crowd funding for intitial advice already met.

  130. Richard Marks
    June 30, 2016

    Surely once the process has started then there can be no true negotiation – the EU can stall and play for time until the two years has elapsed. Our negotiating power is seemingly non-existent.

    • It doesn't add up...
      July 8, 2016

      According to Article 50 there is an obligation on the EU to negotiate and to conclude an exit treaty – something that cannot be achieved by stonewalling. The obligation persists even after the two year guillotine is applied – which has the effect of cutting off EU funding inter alia. In any event, it is not in the interests of EU countries not to come to an agreement – which is why they are wresting the negotiation away from the Commission.

  131. Fenner Moeran QC
    June 30, 2016

    An excellent article and analysis, unsurprisingly given the authors.

    However (and I say this with reluctance, as a RemaIN voter) I suspect it is fundamentally flawed.

    The argument appears to rest on the following premise:
    “The obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect in domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory. ”

    But section 2 of the 1972 Act expressly provides for
    “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”

    Since art.50 specifically provides a power for leaving, that surely defeats the argument that triggering it renders the Act nugatory and is therefore outside the prerogative (even assuming that principle works). If the Treaties include within them the right to exit them (and the EU) and the 1972 Act is intended to give effect to them, then ultimately the 1972 Act encompasses and envisages such an exit. Which means that to do so would not run across the statute, and therefore the Royal Prerogative is not (to this extent) limited/excluded.

    That said, I would not expect the law to really be the answer to this. I would expect the courts to say “If the executive do this, and Parliament don’t positively prevent them, then that’s up to the executive and legislative bodies – not the judicial branch of goverment”. And since Sumption would probably be sitting on this one when it reaches the SC, we know at least how 1 vote would go!

    • Mike Fearon
      June 30, 2016

      I have previously said that whilst the purpose may be to render the 1972 Act nugatory, the Act is not so rendered until the process of leaving is complete. By that time, one might reasonably assume, the 1972 Act will be repealed, possibly with an effective date of repeal prior to, or contemporaneous with the date of leaving. Other statute law which conflicts with leaving can be dealt with likewise. In the unlikely event that the government is unable or unwilling to carry the necessary repeals and amendments through Parliament, there could be a need for an election or a withdrawal from the Article 50 process. I would welcome your view on this.

      • Fenner Moeran QC
        July 6, 2016

        I think that’s an interesting distinction, but I suspect one that doesn’t assist. If (and I emphasise, ‘if’) the law says an action to render the 1972 Act defunct/nugatory is unlawful without another act of Parliament (or, to put it another way, the law says that the only power to do so has been removed from the Royal Prerogative and given to Parliament) then an action which will necessarily have the effect of doing so will be unlawful – regardless of whether this takes place immediately, or in 2 years.

      • Mike Fearon
        July 6, 2016

        There is an interesting post from Thomas Fairclough today which addresses the “if”, in some detail. It is possible that the distinction could assist a court in determining whether “a Royal Prerogative power exists and, if it does, its scope and the extent to which it has been superseded by statute (as both Tucker and Barber, Hickman, and King argue it has been for present purposes.)”. Mr. Fairclough assumes that this would be the primary focus for the Court.

    • Sean Feeney
      July 4, 2016

      Indeed! The extensive Padfield-unlawfulness line of authority includes the doctrine of dominant purpose. The dominant purpose of the decisions revealed by the public statements of the Prime Minister, subsequently endorsed by the Cabinet, and his Chancellor and the Governmen’s emerging policy of withdrawal from the EU, far from improper, appears to be an entirely lawful Treaty right “without further enactment”.

      The right of withdrawal codified under European law in article 50(1) appaers to be a right “provided for by or under the Treaties, as in accordance with the Treaties… without further enactment to be given legal effect” under domestic law insection 2 of the 1972 Act.

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  133. Ralph Apel
    June 30, 2016

    Foreign Policy always was prerogative for the Crown could sign treaties without reference o Parliament but recent precedents are different for major foreign policy decisions: To go to war in Iraq or not was put to Parliament; to bomb or not Syria was put to Parliament. To say that the invocation or not of Art.50 is NOT a major Foreign Policy decision is a statement of Brexiteer veracity.

  134. Peter Jones
    June 30, 2016

    My comment re the discussion:
    Personally I wasn’t happy with either choice, in or out. I’m one of the older generation who was bitterly opposed to us joining the EU in the first place. In the end I’ve come round to “better the devil you know” when you consider the might of the other trading blocks out there.

    Having being a lifelong proud Englishman I’ve watched with sadness and despair the way our politicians have pushed us deeper and deeper into the floundering morass of the European superstate rather than simply keeping us in what was supposed to be just a “level playing field” super trading club. So if I chose remain I was eventually voting for the assimilation of my country into a single European state.

    However the exit case was just as bad a choice. They painted no real plan for how/why/when/where we would trade and pay our way in the world. They were allowed to get away with blatant lies and nobody in their organisation blushed and recanted (until after the result). They seem to have failed to notice that much of what we had in 1972 in terms of industry, products for export, a workforce with a huge variety of skills and a set of readily available export markets etc was no longer there. There was no appreciation of our balance of trade deficit with Europe, nor any real plan on how all those eurobillions in grants/aid would be replaced by alternative funds (unless the mythical £350 million was going to prove to be unbelievably elastic in its generosity). Equally they failed to realise how savage is the new reality of British life with so much power and influence, corruption and the sometimes not so veiled threat of privatised violence, concentrated at the top of our society that holds its own ends as way more important than those little people who need “human rights” to protect them. Meantime the poster boys for this position posit views that seem to consist of the kind of slogans you find on tea towels in a tacky gift shop: keep calm and our problems will be gone! So if I voted exit I was exposing future generations to reality of life with the sharks.

    Talk about a choice of between a rock and a hard place. In the end I reluctantly voted remain because 1972 can’t be resurrected, dusted off and we all begin again.

    Now onto the questions of whether this was democratic, whether the PM needs parliamentary authority to pull the Article 50 lever: I desperately hope that every legal and moral option is explored before that decision is made as its consequences for our future (and more importantly my children’s and my grand-children’s future) are seismic and possibly cataclysmic.

    Let us leave aside the “Parliament or PM rules” question for the moment.
    I apologise for the length of what follows, but I’m trying to paint a scene that puts the present dilemma in a more moral context. While we’ve got people picking and sometimes nit-picking over the possible meaning of democracy, law, clauses and treaties let us remember that eventually following a course of action which is legal but which has obvious and dangerous consequences is morally bankrupt. Just following orders was ruled no defence a long time ago.

    Consider what follows in terms of Remain or Brexit and those people who feel this shambolically conducted referendum is somehow the glorious vindication of the democratic process in its purest form:

    Country A for various reasons is not on the UK’s Christmas list. Relations have deteriorated with Country A very significantly over a period of many years.

    Nevertheless the UK and Country A have a variety of treaties in force which confer both rights and obligations, benefits and disadvantages on both parties. Some of the later treaties have come about after much heated political wrangling and some of which can be painted to show they are not in the UK’s best interests if you either play games with the truth/statistics in the right way at the right time or simply have an agenda that doesn’t fit well with those treaties. Many “pundits” have vocally advocated for some form of referendum before such treaties are signed into law, but in general the call for referendum has only had lip service paid to it.

    Relations between the government (and here I include as part of the “government” Her Majesty’s loyal opposition too) and the governed in the UK have also deteriorated significantly over the same period of time leading to many who feel they have been disenfranchised whilst at the top of society, the “few”, have used the situation to promote their own wealth-gathering and maximised their opportunities for obtaining influence to push views into law that are often at odds with “the people”.

    Into this mix in later years have come individuals of either great cunning and/or great power and influence who have been allowed to get way too close to our political representatives. Those self-same representatives who have shown themselves in the last few years to be more than adept at bending “rules/custom and practice” to their own advantage via such things as the expenses scandal etc.

    Out on the fringe of this witches brew of trouble the voices of one or two individuals have grown stronger, aided and abetted by rabble-rousing in much of the press pronouncing that all our ills as a nation would be fixed if only we sorted out Country A once and for all. The main political parties have been in disarray over this, as whilst many of them quite understand (or believe, take your pick) that continued good relations with Country A are in everyone’s long-term interests, nevertheless running with popularism and blaming Country A for our problems takes the heat off the parliamentary establishment in the short-term.

    However things have now come to a head. With the rabble-rousers (both outside Parliament and within it) getting ever more vocal the PM takes a frightening gamble with the nation’s future: confident in his knowledge of the real situation re Country A, confident that even the loyal opposition in general also are aware of the real situation that we and Country A need to learn to get along better, he decides to call the rabble-rousers bluff by giving them the yes/no referendum for which they are clamouring. They can decide yes/no re breaking off relations and tearing up treaties with Country A which could then lead to a declaration of war. Not some petty bit of sabre rattling but out and out war involving the death of many on both sides and possibly the ruination of both, never mind who actually claims victory.

    He and the loyal opposition are blithely unaware of the disconnect between themselves and many of the electorate both at the bottom of society and also with the “steady, stoic” middle-grounders of his own party. He is also arrogant enough to declare the result binding on his government (because he is confident of winning) even though no referendum (unless preceded by appropriate legislation) is binding on the government. Nobody is spelling out this non-binding reality because a) it would make the referendum look like what it is: a) a sop to quieten the masses and b) because he is blindly confident of winning anyway so he happily declares he will invoke treaty revocation etc and all its consequences if he loses.

    In the run up to the referendum the “Remain with Country A” camp are so sure in their certainty that everyone realises the advantages of remaining that their advocacy of the case is poor, especially when those who are normally political opponents find themselves trying to sing from the same hymn sheet. The best they can do is to paint some sort of vague picture of what might happen if we don’t remain. In many cases their arguments are (granted forced to be so, due to the nature of not being psychic) not planted in solid evidence and in some cases their proponents are playing at simple scare tactics.

    On the other side the Exit outfit are wildly cheer-(jeer)-leading their case with similar scare stories and information regarding the damage that Country A is doing to us that is contestably incorrect (but appeals to a whole range of blinkered views about Country A) but the Remainers never get real traction on dealing with it thanks to their own complacency and a press that feeds its circulation figures off confrontation and headlines.

    Cometh the referendum cometh home the pigeons.
    The Exiters have won, though only narrowly. They are suddenly triumphant in the cause of democracy in its simplest and most dangerous form (where mob rule can override sense) that puts the choice of 17 million people into the frame as somehow being a landslide overpowering defeat of 16 million people, not even including the 12 million or so who didn’t vote on it at all. We have some 37% of the population telling the rest what will be and we call it democracy when in fact it is the tyranny of the mob. In fact had we decided it on the simple toss of a coin the winning side could at least have claimed a 50% legitimacy!

    Suddenly realising that the only thing that stands between them and total war is avoiding the point where the PM gives the finger to Country A, quite a few of the “Exiters” are having second thoughts, esp as their leaders are rowing back on many of the things they promised, many of the “facts” are turning out to be lies or half-truths and many other people are suddenly realising that doing a protest vote at this time was a big mistake.

    So let’s summarise the position at that point:
    We are one step away from the horrors of war because 37% of the population, for a variety of reasons, voted for it. When the rest of the voters point out that the remaining 63% either voted against or abstained they are spat on and called sore losers who would undermine democracy and prevent many people getting killed on the basis of a result based on significantly misleading (and in some cases blatantly untrue) information. They don’t even have the contrition to acknowledge that the young, who will do the fighting and dying, voted heavily against the idea.

    “Stuff the truth, sound the bugles!”

    So tell me anybody who thinks this was a victory for democracy, esp as it was won to some extent on the basis of lies and misinformation, would you go to war or send your son/daughter to be killed on the basis of 37% voting for it under those circumstances?

    Now go back and thank those people who are trying to make sure this shambles is given every possible hurdle to get over before it runs away with us.

    • Tom Austin
      July 2, 2016

      I feel for you Peter, and I mourn with you too.
      I would say that the PM had only the ‘confidence’ of self – not of message. And is in any case unaffected by the Leave outcome, and his Party will stick to power however it can.
      Alas, it appears the ‘only’ hurdle likely will be the Law.

    • Paul
      August 22, 2016

      British people need a general elections , NOW!

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  136. Graham Senior-Milne
    June 30, 2016

    Did you squeal when Brown signed the Lisbon Treaty? No, because the power to negotiate treaties rests with the Crown. The 1972 Act merely incorporates EU law into UK law based on the signing of a treaty, it has nothing to do whether there is a treaty in the first place, which is a matter for the Crown. Nice try but no cigar.

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  142. Mike Fearon
    July 1, 2016

    I posted a reply to the Alison Young item suggesting this is putting the cart before the horse. Notifying intent to leave the EU does not cut across or render nugatory any Act of Parliament. It notifies an intention to do so. There is every reason to suppose that the government will put this intention into effect through normal political processes. Should it prove impossible to carry through the requisite legislation, there could be a need to notify the EU that the intention has changed. This might be preceded by a General Election.

    There is a direct analogy in constitutional terms in the Queen’s Speech. No-one expects the government to delay expressing its intentions until it has passed legislation to carry them out, or to make an Order in Council before asking the Queen to express them. It is universally accepted that it is the Government’s prerogative to express its intentions in this manner.

    The only difference with a notification of intent under Article 50 is that some of the electorate, and perhaps the Government, are more frightened of the potentially embarrassing consequences should Parliament subsequently prove itself unwilling to deliver the stated intention. There is no reason in constitutional law, however, why the Government cannot treat this statement of intent in exactly the same way as the Queen’s Speech, if it is brave enough to state its intentions to an audience of EU member states.

    Any comments from the authors would be appreciated.

  143. tiddk
    July 1, 2016

    One thing has been overlooked. The decision to join the EEC in 1972 was not subject to a referendum or “democratic mandate”. It was a political decision taken by the elected Government of the day. The same is true of our membership of NATO, and of the UN. This is how our democracy works. We elect a Government and leave it to them to make the important decisions affecting our nation’s future.

    The decision to hold a referendum on EU membership was a populist one taken by the Tory Party who sought re-election in 2015. The original move for a referendum was made by UKIP who had steadily increased their power base in the country and were taking votes from both Tory and Labour Parties, but especially the Tories. It was hoped that a promise of a referendum would stem the tide of defection to UKIP.

    This is the background to the referendum, which perhaps should be reflected on by those who shout out “The people have spoken!”. Well, actually, the people have spoken after being led up the garden path mainly by anti-European media, newspapers in particular, and an anti-European political party. Democracy? A sad version of it perhaps.

  144. Mike Barnard
    July 1, 2016

    Hats off to the authors for such a well-considered article, in particular their considerations of the validity of pre-referendum messaging and the crucial need to balance ‘democracy’ with ‘national interest’.

    The basis of our justice system requires the swearing of an oath (with criminal penalties for perjury) that truth will be told, before a trained and competent judge. Yet the ‘democratic’ referendum process imposes no obligations for truth, and places an untrained electorate in the position of judge.

    Thus while we apply correct legal process to fine a person £50 for littering, by proceeding with Brexit we would risk allowing the UK to sink into recession and do untold harm to Europe (and the world?) to show that we are upholding ‘democracy’.

    Surely national interest and the UK’s wider obligations must win out in order to stop the madness that is Brexit.

    • apbaxter94
      July 3, 2016

      It was a referendum in which both sides lied and propagated their own side of the story. That’s politics. We don’t re-run general elections because people fib. But the result is in, and if the politicians we elect do not act of that, they will sink even lower in the public’s opinion.

      I would also disagree that leaving the EU will do ‘untold damage’.

      • Tom Austin
        July 3, 2016

        There’s none so blind as…
        We had a taste of the threatened disaster, and we’ve not moved an inch since the referendum.
        The Leave lies were all owned up to on the 24th.
        But, what the hey…we get a re-run in five years…oh wait.

      • simple-touriste
        July 4, 2016

        Which lies, specifically?

      • Tom Austin
        July 4, 2016

        All of them;specifically.


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  150. Rule of Law
    July 2, 2016

    There is a very simple answer to all of this. It has nothing to do with the prerogative, the 2011 European Union Act or the (non-binding) EU referendum. It all comes down to the fundamental constitutional principle of Parliamentary sovereignty.

    1. Article 50 is not engaged at all unless a decision has been taken by the relevant Member State to withdraw. That decision must be in accordance with the State’s own constitutional requirements (Art 50.1). If no such decision has been made, no notification under 50.2 can be made.

    2. The U.K. joined what is now the EU under the European Communities Act 1972. The decision to join was that of Parliament. The 1972 Act imports the Treaties etc into UK domestic law.

    3. Under the doctrine of Parliamentary sovereignty, only Parliament can repeal the 1972 Act. This is clear from the Bill of Rights and subsequent case law.

    4. Prior to the Lisbon Treaty, the only way the UK could withdraw from the EU was by repealing the 1972 Act. There was no other way. Therefore prior to Lisbon the decision to withdraw could ONLY be taken by Parliament.

    5. When Parliament was considering the Lisbon Treaty before its incorporation into UK domestic law, Parliament received evidence from the FCO that what is now Article 50 of the Lisbon Treaty had no effect on the UK’s doctrine of Parliamentary sovereignty. The Select Committee concluded that after Lisbon the UK could only withdraw from the EU if PARLIAMENT so decided and at a time of Parliament’s choosing. This accords with the pre-Lisbon position. So nothing had changed.

    6. Article 50 did not give the UK a new power to withdraw. It simply confirmed in Art 50.1 that Member States could unilaterally withdraw in accordance with their own existing constitutional requirements and that IF they took that decision, then Article 50.2 and 50.3 would kick into to regulate the mechanics of the withdrawal.

    7. For the purposes of Article 50.1 the UK’s constitutional requirements are such that only Parliament can take the decision to leave. See 3-5 above. This has not been changed by Lisbon. Parliament has not taken the decision to withdraw (yet). Therefore Art 50 is not engaged at all. So there is no power to give notification under Art 50.2. Any such notification would be ultra vires absent a decision by Parliament to withdraw.

    So there is no need to worry about notification or the prerogative or anything else. It is a simple, straightforward application of basic UK constitutional principles. It is the enforcement of the rule of law. No decision by Parliament, no Article 50.2 notification of withdrawal.

    The High Court is currently seized of an application for Judicial Review where this point is being argued. The papers were lodged last week. The Court has already ordered HMG to respond on an expedited basis and has observed that the matter raises issues of constitutional importance. These issues require to be determined and will be decided over the course of the next few weeks. An injunction has been applied for to prevent any Art 50.2 notification being given absent a decision by Parliament to withdraw. That will require a vote in Parliament where Parliamentarians can vote with their consciences, which is what they were elected to do in the first place. The referendum was a side show and irrelevant.

    • Mike Fearon
      July 3, 2016

      The British government decided to join the EEC prior to signing the accession treaty, and the decision was ratified by Parliament subsequently. There appears to be every reason to follow a similar process in relation to leaving the EU, with the Government making the decision and notifying an intention, with the process effectively ratified by Parliament repealing or amending relevant legislation. It is understandable that those who wish to remain in the EU prefer a different process, but I anticipate the Court will determine that this procedural precedent may be applied in reverse.


      • Rule of Law
        July 3, 2016

        The 1972 Act was the instrument which gave effect to the UK’s membership of the EU as a matter of UK domestic law. The Treaties have legal force in the UK under the 1972 Act. If the Treaties have no legal force under domestic law the UK could not remain a member of the EU. The UK’s membership of the EU will by definition cease when the Treaties cease to apply to the UK, which they will under Art 50.3. Art 50.3 means that the Treaties will no longer be enforceable under domestic law. That result can only properly be achieved by Parliament, which gave the Treaties the force of law domestically in the first place. On the international level the decision to join and withdraw is just one part of the story. There is also the domestic level to consider, which is equally important to the question of the decision to join and withdraw. International and domestic cannot be separated. On the domestic plane Parliament is sovereign. For the purposes of withdrawal, the Government cannot properly act on the international plane without taking account of the consequences under domestic law, one of which will be to cause the Treaties to cease to apply domestically when Parliament has already taken the sovereign decision that the Treaties should apply domestically. Therefore only Parliament can take the decision that the Treaties should no longer apply domestically.

      • Mike Fearon
        July 3, 2016

        I don’t think that conflicts with my comment. My point is the order of events on joining the EEC. The government made the decision, and signed the Treaty. The Treaty came into effect just under a year later, subject to ratification by Belgium, Ireland, Norway and the UK. The UK parliament ratified the decision by passing into Law the 1972 Act. (The Norwegian government held a referendum and did not ratify as a result of that.) There is nothing in Article 50 to prevent the process being followed in reverse. The Government makes the decision, and notifies the EU that it has made the decision. If it wishes to do so, and deems it necessary or appropriate to do so, it can clarify that the decision is dependent on ratification.

        The ratification may or may not happen. Parliament could refuse to repeal, or amend as necessary existing legislation including the 1972 Act. The important point, although many people may not like it, is that it demonstrates that the Government is committed to the policy of withdrawal, and puts the onus on Parliament to frustrate the Government’s intention, and the majority vote in the referendum. Alternatively it puts the onus on the Government to frustrate the majority referendum vote by deciding not to give notice of an intention to withdraw. Then it is quite clear where our politicians stand. I keep saying that the horse and the cart perform best in the correct order. The horse has to do its job as the leader, or it could push the cart anywhere.

        Many people will dislike that approach, but it seems to me to better to say so, and elaborate on the reasons for disliking the approach, than to argue that it is in some way unconstitutional. It clearly was not found to be unconstitutional in 1972, and is an established precedent.

      • Stephen Laws
        July 3, 2016

        The reason the analogy does not work is because it seems to be clear that serving the Art 50 notice irrevocably determines both that exit will take place at the end of the notice period and the terms – or lack of them – on which that exit will take place (subject only to the ability of the UK government to negotiate something different with the 27 in the meantime). The effect of the notice is not contingent in international law on any subsequent ratification. Its service would therefore, for practical purposes, pre-empt numerous decisions relating to the terms of exit and the timing of its occurrence which are not mandated in political terms by the referendum, and so are decisions Parliament might legitimately feel to be its duty to consider in the course of passing the implementing legislation.

        The extent to which the executive may use its undoubted legal powers to anticipate or pre-empt Parliamentary decisions on legislation is not a legal question but it is a question of what is or is not constitutional. That constitutional question already arises and is sometimes controversial in a number of other contexts. In this case, it would be sensible not, unnecessarily, to add that question to the other but unavoidable complexities of the process.

    • 0101010011010100101d
      July 3, 2016

      Good to hear of such action being taken.

      • Mike Fearon
        July 3, 2016

        I don’t think the theory that there are inevitable consequences is valid, even if it is in fact an obstacle. There is the practical possibility that the Member States could decide that a decision subject to ratification is not a decision. They could allow a notification to be withdrawn irrespective of specific provision for this. There is also the opportunity for the period during which the Treaties continue to apply being extended indefinitely under 50.3. Consequences may be likely without being inevitable.

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  157. europeanbritblog
    July 3, 2016

    Reblogged this on European Brit and commented:
    Here is an interesting article by the UK Constitutional Law Association posted on June 27 2016:

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  168. hdan
    July 3, 2016

    It is true that the Prime Minister has never been granted lawful authority to issue a declaration under article 50 of the Lisbon Treaty. However, the Privy Council _has_ been granted that authority: under section 2(2)(a) of the European Communities Act, the Privy Council by Order has power to exercise any of the UK’s rights under the EU treaties [*], and under section 2(4) of the same Act, the Privy Council may also take any action consequent on the exercise of those rights that Parliament would be able to take (including amending or repealing primary legislation). These powers (unlike more recent Henry VIII clauses) are subject neither to an affirmative resolution procedure nor to a negative resolution procedure in Parliament.

    If it’s really vital for the Prime Minister to feel important, then the Privy Council could, alternatively, (under the last paragraph of section 2(2) of the same Act) declare the Prime Minister to be the “designated minister” for the purposes of issuing article-50 declarations, in which case the Prime Minister would be able to do the deed him/herself; although the PC has _not_ done this yet, so the Prime Minister is definitely not the “designated minister” at present.

    [*] I note Dan Law’s point, above, that ‘If Parliament had intended to confer such a power in s.2(2), it could have been expected to say so expressly.’ The phrase ‘enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised’ definitely appears to me to be Parliament “saying so expressly”: but as I said, conferring the power on the Privy Council, not on the Prime Minister.

    • Dan Law
      July 4, 2016

      hdan – s.2(2) gives delegated authority to the executive to implement EU obligations into domestic law by means of statutory instruments. It gives authority to act in the domestic plane, not on the international plane. Keep in mind ‘noscitur a sociis’ when reading s.2(2) and the need to read the act as a whole. Applying the ‘proper purpose principle’ / Padfield, one would conclude that while invoking Art 50 might appear to be within the scope of s.2(2) if one gives a very literal reading to words taken out of context, Parliament did not intend to authorise this. It is scarcely credible that Parliament would intend to delegate such a far-reaching decision to lie within the executive’s discretion. If Parliament intended to delegate authority to the executive to withdraw from the EU, it could have been expected to say so expressly (making specific reference to Art 50).

      Five years ago, I doubt anyone would have accepted the notion that pursuant to s.2(2) ECA, the Privy Council could, at any time, by Order in Council effect the UK’s withdrawal from the EU, without need for consent from Parliament or any kind of referendum. Statutory interpretation has not changed, just the political context.

  169. John Moss
    July 3, 2016

    Principle of Estoppel applies.

    By passing the Referendum Act in 2015, Parliament is estopped from disallowing its result

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  174. jnsm5
    July 4, 2016

    If this is really going to be litigated, then, given the pre-emptive nature of any challenge, the likelihood of further appeals (if fought in the ordinary courts), and the clear-cut and constitutional nature of the question, might a possibility be for the prospective litigants to ask the government to use the power under s4 of the Judicial Committee Act 1833 to refer the matter directly to the JCPC? Given that Supreme Court judges would then decide it, the Board’s opinion would essentially be a final judgment on the matter and there would be no procedural issues.

  175. Marty Caine
    July 4, 2016

    There way I see it, as the Referendum Bill was actually so ill thought out that it never included anything past the actual referendum result coming in, there is not British law in place on how to proceed with the Referendum vote to leave. If there is I certainly cannot find it.

    If I am correct the only applicable law in this is in fact the Lisbon Treaty which as members we are obliged to abide by. This would mean simply notifying the EU of our referendum result and that notification would invoke Article 50.

    Should government decide to do a u-turn on the result they would then be in breach of the Lisbon Treaty and international law, same would apply if they repealed ECA Act 1972, which rather ironically could then be forced before the European Courts who would have no option other than to stand by their own democratic standards for EU Citizens and force the invoking of Article 50.

    Parliament must be in chaos over this because they are on a lose/lose no matter what they do, even if they ignore the people and disregarded that majority decision they know full well that will result in handing 17.4 million votes to UKIP at the next General Election. If the Referendum had been a General Election the end result would have given Leave the highest majority in the history of British politics.

    I do know that the delaying of invoking Article 50 is an extremely precarious gamble as the EU can still hit us with any bills that it feels like hitting us with whilst we are in this limbo situation.

    • Tom Austin
      July 4, 2016

      Let’s not kid ourselves. The sole detriment of negating the referendum result would rest upon the Conservative Party – it would bring them back to the time when they first came up with the ‘wizard wheeze’ of offering the referendum in the first place.
      -Many of the ‘Brexit’ votes would never now go to UKIP;other than the may-be conservative votes.

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  177. Auguste
    July 4, 2016

    Hi – I am interested by the phrase ‘false prospectus’ in the piece. Given the discussion, prominence and subsequent withdrawals regarding the ‘£350M to the EU per week’ and the related commitments to direct this to the NHS would this be a good argument to question the entire validity of the referendum?

    • Tom Austin
      July 4, 2016

      Unfortunately, the ‘entire validity of the referendum’ has been realized – We still ‘enjoy’ a Conservative Government.
      There is a petition doing the rounds calling for an independent ‘truth’ verifier. Alas, lies are the corner-stone of the British Establishment.

    • Dan Law
      July 4, 2016

      Auguste – very surprisingly, I believe there would be. More accurately, a reasonably good argument can be made that under EU law the UK has legal obligation to nullify and rerun the referendum. Moreover following from this it may be further argued that the UK could not validly invoke Article 50 on the basis of the 23 June referendum result even if Parliament approved this. Ultimately that would of course be for the CJEU to determine; in the meantime interim relief might be sought. I intend to submit a post on this website which will elaborate, and don’t wish to sidetrack this discussion from debate of the arguments presented by Barber et al. in this post.

      • Robmod
        July 5, 2016

        I can only encourage you with such a post examining a false prospectus based legal challenge. It seems novel. But that it maybe supportive of a conscience vote in Parliament is clear.

    • simple-touriste
      July 4, 2016

      “subsequent withdrawals regarding the ‘£350M to the EU per week’”

      Can you please indicate when these withdrawals occurred?

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  192. Richard B. Jones, Jones Law, Canada
    July 4, 2016

    Fine and very sound piece of work. Three comments.

    1. It would be useful to examine the multitude of Acts of Parliament dealing with the EU treaties. Those Acts approve and implement the treaties and exercise in ways specific to the United Kingdom some permissive or optional powers under them. I notice that the European Union (Amendment) Act 2008, which implemented the Lisbon Treaty including Article 50, has provisions requiring consent of Parliament by an Act to any future amendments in a number of specific matters. Since a termination of the treaty is surely an amendment by deleting all of its provisions, surely there is already a statutory requirement for the advice and consent of Parliament. Does this not bring the matter directly within the Case of Proclamations and the FireBrigades decision?

    2. The “false prospectus” comment opens an important legal as well as political issue. Has anyone analyzed the extensive provisions in the schedules to the European Union Referendum Act 2015 concerning campaigning? The Leave campaign complained about Mark Carney and the Bank of England and claimed that his statements were breaches of the statute. Now we see that material statements in the Leave campaign advertisements and flyers were false or misleading or are now rescinded as “a mistake”.

    3. The paper addresses the basic character of representative democracy and the power of Parliament to act on the basis of the facts as then known to the members. So far as it appears, the voters during the campaign were never told that there was no power for the United Kingdom to condition its departure upon the advertised post state of free trade and no freedom of movement obligations. The voters, again so far as it appears were never told that the decision to leave might include the cost of dismembering the United Kingdom. The Scottish and the Northern Ireland possibilities are clearly material changes and should be a price too high to pay.

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  206. simple-touriste
    July 4, 2016

    “As some of the core claims made by the leave campaign unravel”

    Not listing those claims makes your case extremely weak.

    • Solange Lebourg
      July 6, 2016

      Perhaps further repetition would be tedious. Are you unfamiliar with these claims?

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  209. Surrey Highlander
    July 4, 2016

    Surely the UK joined the European Communities by signing a treaty of accession in Brussels on 22 January 1972 and the decision of the then Council of the European Communities of the same date (as specified in section 1 of the European Communities Act 1972). The European Communities Act 1972 simply incorporated EU law into UK law, rather than being the mechanism by which the UK joined.

    If the UK could enter the European Communities by means of a treaty then the corollary is that it can leave by the same method.

    Therefore if the UK Parliament didn’t repeal the European Communities Act 1972 it wouldn’t affect whether the UK was a member or not of the EU, but whether UK courts have to apply EU legislation. This would mean the UK could leave the EU but would still be bound by EU law. Not exactly a situation anyone would wish?

    • Mike Fearon
      July 4, 2016

      I have commented previously in a similar vein, but the Treaty was subject to ratification. Norway did not ratify, following a referendum. The UK did, and in the meantime passed the 1972 EC Act. Exactly what form the ratification took, and whether the EC Act was, or was part of, the requisite ratification I don’t know.

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  235. Sean Feeney
    July 5, 2016

    The Guardian newspaper has reported today online that “Dominic Chambers QC of Maitland Chambers in London, an expert in international and commercial law, is acting for a British citizen, Deir Dos Santos. Other legal claims making a similar point are also being prepared by the law firm Mishcon de Reya.”:

    Deadline approaches for government response to Brexit legal challenge

    Ministers must respond to legal claim that only parliament can authorise decision to trigger article 50 of Lisbon treaty

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  253. Sean Feeney
    July 8, 2016

    The Guardian has reported that “high court judge, Mr Justice Cranston, has set 19 July for a preliminary hearing of the judicial review challenge brought on behalf of the British citizen Deir Dos Santos.” .The claim, which the High Court has acknowledged raises issue of constitutuonal importance, will be heard by two judges of the Divisional Court.

    The claim challenges as ulta vires a decision is the Prime Minister’s resignation speech according to the Guardian: ““The extract from the prime minister’s resignation speech … makes it clear that [the government] is of the view that the prime minister of the day has the power under article 50 (2) of the Lisbon treaty to trigger article 50 without reference to parliament.”

  254. Sean Feeney
    July 8, 2016

    The Guardian report “First legal attempt to prevent Brexit set for preliminary hearing” is at this link:

    Maitland Chambers have posted the following statement, which confirms the defendant is the Rt Hon Oliver Letwin MP, who is heading the implementation of Brexit for the Governmant:

    The most important constitutional law case in living memory

    08 July 2016

    Dominic Chambers QC has been instructed by David Greene, Senior Partner and Head of Group Action Litigation at Edwin Coe LLP, to represent the Claimant in the case of Santos v Chancellor for the Duchy of Lancaster in the Divisional Court. In the case, which has been described as the most important constitutional law case in living memory, the Claimant seeks to prevent the Government from triggering Article 50 of the Treaty of Lisbon without the prior authorisation of Parliament. The case concerns the central constitutional principle of the sovereignty of Parliament and the upholding of the rule of law. This is the first Article 50 claim to have been issued in Court.

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  260. grahamwood32
    July 11, 2016

    I find it difficult to understand why the “invoke Article 50 of the LT” is accepted as the only option, and I believe that an alternative is waiting to be acknowledged and adopted.
    That is to argue the case that the UK should formally leave the EU by invoking the Vienna Convention on Treaties (Article 62), on the grounds that a material, or substantial change of circumstances has occurred as a result of the Brexit referendum, ushering in a completely new political and constitutional situation. These circumstances are:
    1. A complete re-appraisal of all government policies for the future in a new non-EU framework including de-coupling from EU treaties and new negotiations with the EU Commission and other member states.

    2. Resignation of the UK Prime Minister who had publicly supported and campaigned for a ‘remain’ position, using a variety of government resources to do so. Advent of a new Prime Minister and Cabinet.

    3. Rejection by the British electorate of EU hegemony over the UK after 43 years with implied rejection of all treaties entered into from Rome to Lisbon by the UK..

    4. Recognition of the Brexit vote internationally and uncontested by the EU itself or any member state of the new political reality.

    5. Brexit referendum effected peacefully and legally in “accordance with the UK’s constitutional requirements.” (a point specifically referred to in Article 50 of the EU Lisbon Treaty, and in accordance with the British government’s own Referendum Bill in parliament)

    6. The significance of the Brexit vote conceded by the outgoing prime Minister, Mr Cameron as being “an instruction to the government” by the people

    7. Post Brexit trade deals immediately sought by a number of countries with the UK government, recognising the sovereign right of the UK to enter such bi-lateral agreements with these, and signalling a fundamental change in trading policy by the UK formerly undertaken corporately by the EU on behalf of member states. (Countries which have so far signalled they would like to open trade talks with the UK include the USA; China; India; Norway, Switzerland, Greenland; Australia, New Zealand, South Korea, Canada, Mexico; Ghana, and Germany.)

    8. Such trade deals if entered into would immediately question the status of the UK and its obligations to the EU under existing treaties (see Article 62 (2) above and such obligations would then indeed be transformed.

    Taken together these factors do indeed represent a substantial change of circumstances for the UK government and people, reversing over four decades of EU membership and political domination by the EU from what was popularly understood, and presented by the government at the time of accession, to be primarily a trading and economic arrangement with the six nations of the then European Economic Community.

    • Marty Caine
      July 11, 2016

      The VCLT is for individual countries not intergovernmental organisations like the European Union, this is why the 1986 extension (VCLTIO) was added but as far as I am aware as not yet been ratified so is not in force and cannot be used.

      The only legal, sensible and logical move is to invoke Article 50, should the negotiation prove too negative then these backdoor methods will still be readily available but at least we can hold our heads high knowing we did try the correct procedure initially.

      • grahamwood32
        July 11, 2016

        Marty. The UK is an “individual country” . The EU acts as a representative for its 28 member states collectively and recognises the validity of the VCT.
        Britain as a signatory had the right, and under the new constitutional and political reality brought in by the referendum vote, an obligation to invoke Article 26 as well as other Articles relevant to our accession.

      • Anthony Arnull
        July 11, 2016

        It seems to me doubtful that the circumstances in which the UK finds itself have changed fundamentally for the purposes of Article 62 VCLT as they are expressly contemplated by Article 50 TEU, which makes it possible for any Member State to withdraw. Once triggered, the procedure is a fairly rapid one. However, it is widely accepted that the UK will want some sort of continuing relationship with the EU after withdrawal. It would not be sensible to invoke Article 50 until we have worked out precisely what we want to achieve from the ensuing negotiations with the other Member States. Nor would it be sensible not to follow the procedure set out in Article 50, to which we agreed when we ratified the Treaty of Lisbon. Failure on our part to respect the procedure would undermine our status as reliable partners, not just with our soon to be erstwhile EU partners, but also with the many countries around the world with whom we will soon be seeking to conclude trade agreements.

      • Dan Law
        July 11, 2016

        Termination by invoking Art 62 VCLT on basis of the referendum result would also run up against 62(2)(b).

  261. Grace brand
    July 11, 2016

    The government is elected to represent the people of Britain the vote was to leave and that is what has to be carried out. Rules can’t be changed to suit as you go along. Remain lost and will have to get on with it .

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  265. grahamwood32
    July 11, 2016

    Dan Law. I think you probably mean Article 1B of Article 62 of the VCT which states
    “the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.”, and not 62 (2) (b) ?

    The result of the referendum does indeed entail a comprehensive and fundamental change of circumstances in and of itself, and would once implemented by legally repealing the ECA 72, certainly entail a “transformation of our obligations” under the EU treaties) of which this Article speaks.

    • Dan Law
      July 11, 2016

      Graham, I do mean 62(2)(b). i.e. an attempt to terminate under Art. 62 could fail given 62(2)(b) if the referendum result is relied on as the fundamental change of circumstances:-

      2. A fundamental change of circumstances may not be invoked as a ground
      for terminating or withdrawing from a treaty:
      (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

    • Marty Caine
      July 12, 2016

      Can any legal beagle please explain to me why the VCLTIO extension of VCLT was ever drawn up in 1986, if VCLT is applicable to International organisations or isuch as the EU?

      Surely the fact it was drawn up in the first place clearly shows that VCLT does not apply in the current situation with the EU and the UK and the fact that VCLTIO is open to signatures but not yet ratified means it cannot be used because it is simply not in force.

      It all makes as much sense as all this legal nonsense about who should invoke Article 50, does the PM have the power to do so or does it require parliament, when in fact no one invokes it, that is actually done automatically once our government officially notifies the EU of the referendum result, something that according to the Lisbon Treaty they have a legal obligation to do.

      This delay is totally unnecessary and is putting Britain at great risk of being hit with massive bailout charges, should the Eurozone collapse before we leave and it will. Lawyers trying to find loop holes to pervert a democratically made decision should be ashamed and to say they are justified because the leave campaigned lied is simply stupidity at its best, its like saying we should just walk away because the Government lied in 1975.

      It maybe wise for those legal beagles who seem so desperate to overturn a democratic decision to contemplate just what kind of advertisement they are displaying at the moment.

      • richard jarman
        July 13, 2016

        It’s called the rule of law; often with a capital R & L. As in any other endevour if there is doubt about a rule, principle, prognosis, diagnosis, or prognosis there is a scheme enabling a decision, maybe a compromise, maybe a fair result, in this case the legal system is the arbiter. Don’t blame the players – (but cut the costs!).
        If the legal process could overturn Brexit (what fun) then those who formulated the Brext process simply made a bad or incomplete law. That is certainly niether uncommon nor unusual; tabloids. bad journalsists and poor legislators will try evade responsibility. Politicians in Guildford will declasre UDI (?)

  266. grahamwood32
    July 12, 2016

    Dan. What more “fundamental change” would you consider to warrant an appeal to Art.62 of the VCT? Riots on the streets? Martial law? Of course not!
    The referendum vote by the people and the result was the highest form of democratic expression there is, and has resulted in unprecedented results.
    I listed in another post what these were, and repeat for emphasis:
    (point 8 is particularly important as other countries are now ‘knocking on our door’ for trade deals)

    1. A complete re-appraisal of all government policies for the future in a new non-EU framework including de-coupling from EU treaties and new negotiations with the EU Commission and other member states.
    2. Resignation of the UK Prime Minister who had publicly supported and campaigned for a ‘remain’ position, using a variety of government resources to do so, and the advent of a new Prime Minister and Cabinet.
    3. Rejection by the British electorate of EU hegemony over the UK after 43 years with implied rejection of all treaties entered into from Rome to Lisbon by the UK.
    4. Recognition of the Brexit vote internationally and uncontested by the EU itself or any member state of the new political reality.
    5. Brexit referendum effected peacefully and legally in “accordance with the UK’s constitutional requirements.” (a point specifically referred to in Article 50 of the EU Lisbon Treaty, and in accordance with the British government’s own Referendum Bill in parliament)
    6. The significance of the Brexit vote conceded by the outgoing prime Minister, Mr Cameron as being “an instruction to the government” by the people
    7. Post Brexit trade deals immediately sought by a number of countries with the UK government, recognising the sovereign right of the UK to enter such bi-lateral agreements with these, and signalling a fundamental change in trading policy by the UK formerly undertaken corporately by the EU on behalf of member states. (Countries which have so far signalled they would like to open trade talks with the UK include the USA; China; India; Norway, Switzerland, Greenland; Australia, New Zealand, South Korea, Canada, Mexico; Ghana, and Germany.)
    8. Such trade deals if entered into would immediately question the status of the UK and its obligations to the EU under existing treaties (see Article 62 (2) above and such obligations would then indeed be transformed.

    • Dan Law
      July 12, 2016

      Graham – my point does not concern whether or not there has been ‘fundamental change of circumstances’ within meaning of Art 62 VCLT. It is that, even if the referendum result is considered such, it still may not be possible to invoke Art 62 because of 62(2)(b).

      To put it the other way, there may well be good argument that the ‘fundamental change of circumstances’ relied on (the referendum result) was the result of a breach of obligations the UK has under the EU Treaties and other international obligations owed to parties to the EU Treaties. If this is shown, then Art 62 could not be invoked, even if it is accepted that the referendum result is ‘a fundamental change of circumstances’ of the kind required by Art 62 (which I am very doubtful about).

  267. Pingback: Brexit Brief: Article 50 | Blog

  268. Pingback: Like a Bargaining Chip: Enduring the Unsettled Status of EU Nationals Living in the UK | Verfassungsblog

  269. Kevin McAlpine
    July 13, 2016

    Parliament passed a bill to hold a referendum. Not to hold an opinion poll.
    It is clear to everyone voting on that bill, that if the country votes to leave, it will leave. There was no ambiguity. They voted to let the country DECIDE whether to go or stay.
    It follows from the passing of that bill by Parliament, that Parliament has ALREADY approved leaving, if the referendum goes that way.
    It has therefor already given it’s consent to the invoking of article 50, by passing the referendum bill.
    A second vote is not required. That decision was taken in the original referendum bill.

    • Dan Law
      July 14, 2016

      Kevin, I would really like to understand your views better. Your comments highlights a key difficulty of the situation, with a gap between public perceptions and the constitutional and legal considerations being discussed here. The views you express are important because a major challenge the country faces is how this political-legal divide can be bridged.

      This is about much more than the EU. The UK now faces the prospect of a political tempest which threatens the constitution and even the rule of law. As I will try to show, once opinions about the popular will have greater force than constituted power, the country will have defeated itself and democratic government.

      In a democratic system of government, courts have the role of interpreting legislation and deciding what effect this is to have. In doing so, they follow various rules and principles. Parliament knows this and pays attention to these rules when it legislates. So to understand what Parliament decided when it enacted the referendum bill means reading what was enacted in according to those rules. Otherwise it is not about what Parliament decided, but what someone else likes to think Parliament decided.

      Kevin, you have a view about what Parliament decided when it enacted the referendum bill and an opinion about what was clear to everyone. But who should get to decide on what Parliament intended when it voted to enact the referendum bill? You? Press barons? The prime minister? And what’s to stop them from effectively re-writing the legislation as they see fit?

      There is every reason to feel angry and to feel misled about the referendum having a decisive legal effect. This was ‘bigged up’ and sensationalised by the media and opportunistic politicians and shamefully misrepresented to the public. There is also every reason to feel betrayed if that decision is not respected and treated as binding without anything further. However it appears that many people are directing that anger at the constitution and anyone who appears to be trying to put that in the way of what the public was sold. There is no doubt that there was a betrayal of the public’s right to be properly informed. Nevertheless I still believe that laws should be made by a democratically elected legislature and interpreted and given effect by the courts, not by those responsible for that betrayal.

      A decision to abandon our constitution is far more significant than a decision to leave the EU. Did you vote for that?

      • Sean Feeney
        July 14, 2016

        This contribution by Dan Laws prejudges constitutional issues which may arise in the Divisional Court hearing on 19 July convened by order of the High Court in Santos v the Duchy of the Chancellor of Lancaster; and in other judicial review claims.

        The Guardian has reported the claim refers to an “extract” from the Prime Minister’s resignation statement. The extract was not given.

        The Prime Minister stated “the decision has been made to leave”; this is denied by “rule of law” above.

        Mr Cameron’s resignation stated:

        “The will of the British people is an instruction that must be delivered. It was not a decision that was taken lightly, not least because so many things were said by so many different organizations about the significance of this decision.
        “So there can be no doubt about the result….

        “Now the decision has been made to leave, we need to find the best way, and I will do everything I can to help.”

        Claimants may argue, if permission is given for judicial review, that the Prime Minister’s speech is evidence of an unlawful misdirection (“an instruction that must be delivered”) by a decision-maker or an unlawful reason. The response may be be that this is just political rhetoric and not part of the formal decision.

        Naming the defendant in the claim as the Chancellor of the Duchy of Lancaster suggests the decision-taker in the decision (or decisions) being challenged in the claim issued by the High Court is not the Prime Minister; as might have been expected by official statements before the referendum.

  270. Pingback: Josehp Crampin, A Referendum with no Legal Effect? | UCL UCL Journal of Law and Jurisprudence Blog

  271. Pingback: Charles Streeten: Putting the Toothpaste Back in the Tube: Can an Article 50 Notification Be Revoked? | UK Constitutional Law Association

  272. Pingback: The EU referendum and some paradoxes of democratic legitimacy | British Politics and Policy at LSE

  273. Pingback: Part three: the principle of prerogative | Orphans of Liberty

  274. Pingback: El Brexit i el parlamentarisme – Institut d’Estudis de l’Autogovern

  275. Pingback: Last night’s UCL event—Brexit: Legal & Constitutional Requirements | Head of Legal

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  277. Donald Rennie
    July 14, 2016

    As has been correctly identified, Article 50 of the Lisbon Treaty provides that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    The reference to “constitutional requirements” is intended primarily to relate to states that have a written constitution. In the United Kingdom we are fortunate not to have a written constitution so that our “constitutional requirements” can vary flexibly to meet changing political circumstances.

    The classical argument is that the enforcement of treaties or their repudiation is a matter for the royal prerogative but that the United Kingdom’s membership of the E.U.was achieved by the European Communities Act 1972. An Act of Parliament trumps the royal prerogative and therefore another Act of Parliament is required before Article 50 can be triggered.

    But legislation is already in place to allow notice under Article 50 to be given. The legislative authority for the referendum to have taken place is the European Union Referendum Act 2015.

    Section 1(1) of that Act provides, “A referendum is to be held on whether the United Kingdom should remain a member of the European Union.”

    Nothing is said in the Act that to suggest that the Referendum is advisory only. The clear meaning of the Act is that Parliament has legislated that direct instead of representative democracy would decide whether the UK would remain in the Union or would leave it.

    The people voted by a majority of over a million to leave the EU. From this it follows that the Government has received a mandate from the people to give notice under Article 50 and no further legislative action is required.

    The European Communities Act 1972 and much subsequent legislation will require to be repealed but that is nuts and bolts and does not affect the fundamental principle that the people have decided in accordance with the delegation to them enshrined in legislation

  278. Pingback: The EU referendum and some paradoxes of democratic legitimacy : Democratic Audit UK

  279. richard jarman
    July 15, 2016

    Northern Ireland’s new secretary of state has said there should be no border controls between the UK and the Republic of Ireland.

  280. Pingback: The EU referendum and some paradoxes of democratic legitimacy - Democratic Audit UK - Brexit Article 50


  282. Pingback: The Article 50 Litigation – Why the UK Parliament Still Needs to Vote for (or against) Brexit – Public Law & Regulation

  283. Pingback: Stephen Laws: Article 50 and the political constitution | UK Constitutional Law Association

  284. Sean Feeney
    July 18, 2016

    A two-judge Divisional Court consisting of the President of the Queen’s Bench Division, Sir Brian Levenson, and a former Member of Parliament and Solicitor General, Mr Justice Cranston, will hear Brexit “application(s)” on Tuesday 19 July 2016.

    It is unclear from the RCJ cause list if any claimants other than Deir Dos Santos will apply to join the issued Santos claim.

    It is also unclear if the hearing will determine, or hear an application to set aside if already granted, the interim injunction which “rule of law” states, above, has already been applied for.

    COURT 3
    Tuesday 19 July, 2016
    At 10 o’clock
    CO/3281/2016 The Queen on the application of Santos v Chancellor For The Duchy Lancaster

    For official descriptions of the judges, see:


  285. Dmitri Bontoft
    July 20, 2016

    Can someone give me a simple response to the following argument:

    1) European Communities Act brings EU Law into UK Law
    2) Article 50 is part of EU Law
    3) Article 50 provides the power in council to withdraw from EU
    4) Therefore in passing the European Communities Act parliament authorised use of Article 50 in council
    5) Actions in council are performed by the executive as part of royal perogative
    6) Therefore notification under article 50 using the royal perogative has already been authorised by the UK parliament


    • Rule of Law
      July 20, 2016

      3 is wrong. Article 50 does not provide the “power in council” to withdraw (whatever that may mean). Article 50.1 says UK can withdraw in accordance with its constitutional requirements. Those requirements do not include “power in council”.

    • Robmod
      July 20, 2016

      Well, for what it’s worth, my immediate response is…therefore…the Prime Minister wakes up one morning having consumed some bad foie gras the night before; she thinks badly of the French because of it. Her mood darkens as the day goes on; Germany has recently beaten England at football and her constituents are complaining about a new Polish bakery. This is the straw that breaks the camel’s back. “It’s all Europe’s fault”, she says to herself and so, unbeknownst to anyone else, she telephones Tusk and triggers Article 50. So, no referendum, no vote, no Act of Parliament, no cabinet meeting, no consultation required…apparently. Just a bad day at the office and a conniption.

      My second response is to refer the writer to the noble Lord Davies’ shrewd question, which appears to have stunned the government into reflection:

      “Is it not inconceivable that the royal prerogative should be used to withdraw statutory rights? Is that not what we had an argument with Charles I about in the 17th century?”

    • Constitutional Law Group
      July 21, 2016

      Dimitri – please see the argument of Adam Tucker on this blog for a more refined version of this argument, and Mark Elliot’s riposte to him on his blog, Public Law for Everyone.

  286. simple-touriste
    July 20, 2016

    We are being bombarded with lies and pseudo-scientific doom prophecies about run away CAGW everyday by the BBC. These lies are pro-EU, anti-UKIP and anti-brexit.

    These lies are much worst than the few brexit lies.

    By your own argument, any “remain” result should have been cancelled, too.

  287. Pingback: The EU referendum and some paradoxes of democratic legitimacy | The Constitution Unit Blog

  288. Pingback: The people have voted on what they don’t want. Nobody has voted on what we do next. A general election must be called before Article 50 is triggered. – Progressive Brexit

  289. Pingback: Blue Rinse Revolution – Progressive Brexit

  290. Pingback: Can Scotland avoid Brexit? - Sceptical Scot

  291. Pingback: Brexit Begins: an overview of the legal issues | EuroReads

  292. Pingback: The people have voted on what they don’t want. Nobody has voted on what we do next. A general election must be called before Article 50 is triggered. |

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  294. Pingback: The Article 50 Brexit challenge needs to be successful, here's why - Legal Cheek (blog) - Brexit Article 50

  295. Pingback: Brexit: article 50 and all that - Law Gazette - Brexit Article 50

  296. Pingback: The Soviet Union made it hard for republics to leave — so why didn’t the EU? | modica news

  297. Pingback: The EU referendum and some paradoxes of democratic legitimacy – Britain & Europe

  298. Pingback: The need for Parliament’s consent to trigger Art 50 is a matter of EU Law

  299. Marco Mangiabene
    August 16, 2016

    This is an excellent analysis. I agree.

    • grahamwood32
      August 26, 2016

      Marco (and Cons. Law Group).
      I disagree and suggest the facts are entirely otherwise.
      When we joined the European Union with the Accession Treaty in 1972 – and incrementally added to our powerlessness through other Treaties over the years – those treaties were signed under Crown Prerogative powers granted by the Queen to Ministers WITHOUT ANY INVOLVEMENT OF PARLIAMENT.

      When Douglas Hurd the then Foreign Secretary laid the Maastricht Treaty before Parliament it was a fait accompli and he – rightly – said that “Parliament cannot overturn the Maastricht Treaty” (or any other treaty for that matter) and MPs had not been involved in its approval or signing. The same was true of the EU (EEC) Accession Treaty of 1972.

      Although a few patriots argued at the time that this was an unprecedented and illegal use of the Crown Prerogative, it was accepted by all concerned with our constitutional surrender to the EU. The people were not asked whether they approved of the removal of their sovereignty.

      Therefore, on the same logic and precedent, Ministers, are similarly empowered today but this time by a clearly expressed will of the people (and without reference to Parliament)

    • grahamwood32
      August 27, 2016

      Do have a look at Gerald Warner’s excellent analysis publoished on the Sun newspaper and now widely distributed elsewhere. Sound, simple, and minus the arcane complications constructed by so called “constitutionalists”

  300. Pingback: Jein – eine fehlende Variante bei dem Brexit-Referendum | Verfassungsblog

  301. Peter Sain ley Berry
    August 26, 2016

    If an Article 50 notification were accepted as revocable – this would surely help both sides. Would it not be possible to obtain ECJ advice on this? If Article 50 were revocable negotiations for withdrawal could then proceed. A second referendum or General Election could then decide whether this withdrawal treaty was preferable to staying in the EU or not. If not Article 50 could be withdrawn.

    • Anthony Arnull
      August 31, 2016

      It is possible that a reference for a preliminary ruling on the meaning of Article 50 will be made by a UK court in the course of the legal proceedings on this issue initiated earlier in the summer. There may also be a reference on Article 50 in the Irish case involving a European Arrest Warrant issued in the UK.

  302. Pingback: Kenneth Campbell QC: Constitutional Discourse Post-referendum: Where Are We, and Where Are We Going Next? | UK Constitutional Law Association

  303. Pingback: Can UK trigger Brexit without asking MPs? | The USA Times

  304. Pingback: Does Theresa May Know What She’s Doing With Brexit? – Diashmond

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  306. Pingback: Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role | UK Constitutional Law Association | It Is Not A Mandate

  307. Pingback: Brexits First Legal Challenge – Brexit in Spain

  308. Pingback: Trigger | Purathrive

  309. Sean Feeney
    September 24, 2016

    An “urgent” public-interest application to allow publication in full of the case of People’s Challenge, a crowd-funded intervener in the Brexit litigation, and the Government’s defence was lodged in the High Court on Friday 23 September 2016 according to the Guardian.

    Publication, according to the Government spokesperson quoted by the Guardian, is prevented by an existing confidentiality order of the court issued “for reasons including the threats received by some claimants.” Various court documents have been redacted.

    Publication of the court papers, particularly the skeleton arguments, should reveal how these parties deal with the ratio decidendi of R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1993] EWHC Admin 4.

    The Guardian report clarifies that the issue for these interveners is who, in law, is the decision-maker for the United Kingdom’s decision to leave the EU and that these interveners have conceded that Ministers have the power to notify such a decision once the decision has been lawfully made (the lawfulness of decisions is still in issue), and that the relief they are seeking is a declaration of the UK’s “constitutional requirements”:

    “The redacted version of the skeleton argument submitted by the People’s Challenge invites the court ‘to declare that the UK’s constitutional arrangements mean that only parliament can lawfully ‘decide’ to leave the EU for the purposes of article 50 TEU; and that [David Davis] may only ‘notify’ such a decision to the European Council under Article 50(2) TEU once he has been properly authorised to do so by an act of parliament.’

    “It also quotes approvingly from the 1689 Bill of Rights – a piece of legislation revered by Eurosceptics – that it ‘expressly prohibits the use of the prerogative in circumstances where its exercise would ‘suspend’ or ‘dispense’ statutory law.’

    The aplication was “drafted by Helen Mountfield QC [of Matrix Chambers], John Halford, a solicitor partner at Bindmans, and other lawyers”

    Matrix Chambers published a series of legal articles before the referendum

  310. Sean Feeney
    September 28, 2016

    The Irish Times has reported that a government application that Northern Ireland Brexit litigation be stayed and dealt with at the High Court in London has been rejected on 27 September because ‘issues specific to Northern Ireland could “fall between the cracks” – by Northern Ireland High Court Judge Mr Justice Maguire.

    A further hearing is expected in Belfast next week: ‘In their legal challenge, the MLAs [Member of the Legislative Assembly] argue that legislation would have to be passed by the Commons, with the consent of the Northern Ireland Assembly, before Article 50 could be triggered.’ according to the Irish Times.

    A “notice of devolution”was subsequently served on Northern Ireland Attorney General John Larkin QC and the Office of the First Minister and deputy First Minister, who may now intervene at the hearing on 4-5 October, according to Irish Legal News.

  311. Sean Feeney
    September 28, 2016

    Jolyon Maugham QC (who initiated crowd funding) has published the Government’s Grounds for Resisting the Article 50 challenge, The People’s Challenge Skeleton, and the application to allow publication, following the granting of this application by Mr Justice Cranston [on 28 September?] as reported by the Guardian.

    A “a complete version…along with the government’s written defence” may be published by the People’s challenge in the next few days

  312. Sean Feeney
    September 28, 2016

    The Government’s defence to the claim by Miller and others v the Secretary of State for Exiting the European Union

    Paragraph numbers in square brackets are references to the paragraphs in the detailed grounds of resistance (Government’s Grounds for Resisting the Article 50 challenge)

    1. Article 50(2) notification pursuant to the prerogative is domestically non-justiciable because it is an administrative act in international lwaw not domestic law [5(1)].
    2. The UK’s decision to leave the UK was “articulated” in the “referendum result” [5(2)].
    3. The claim conflates notification (under article 50(2)) with the decision to be notified (under article 50(1)) [5(2)].
    4. It is constitutionally proper to give effect to the referendum result by prerogative powers [5(2)].
    5. It was clearly understood the Government would give effect to the referendum result.
    6 This is what the 2015 Act provided [5(2)]. [This appears to bes either a contention that the referendum result was the UK’s statutory decision to leave the EU or that it is a mandatory consideration fettering the Crown’s disretion. If so, a precise submission on this crucial point should be made in the Government’s skeleton.]
    7. The decision to withdraw from the EU is not justiciable [5(3)].
    8. Such a decision is of the highest policy reserved to the Crown [5(3)].
    9. The Court’s lack the expertise of the Crown to make this decision [5(3)]..
    10 It is a constitutionally impermissible breach of Parliamentary privilige to grant the relief the claimant’s seek – compelling the Secetary of State to introduce legislation in Parliament to give effect to the referendum [5(4)].
    11. If the claim is justiciable, exercise of the Crown prerogative would be domestically constitutionally permissible [5(5)].
    12. Commencement of withdrwaing from the EU does not of itself change statute, the common law, or the customs of the realm [constitutional conventions?] [5(5)].
    13 Any such changes are matters fror future negotiations. Parliamentary scrutiny and impementation by legislation [5(5)].
    14 Devolution does not impact the lawfulness of the prerogative as there is no devolved competence in foreign affairs [5(6)].

  313. Pingback: The Government’s case in the Article 50 litigation: A critique – Professor Mark Elliott | Public Law for Everyone

  314. Sean Feeney
    September 30, 2016

    I think I have mischaracterised the defence in my explanatory comment in square brackets at 6 above.

    The defence appears to be pleaded on two alternative bases: (1) the claims are nonjusticiable; and (2) the claims are justiciable.

    Adopting, pro tem, the legal fiction of the first basis, implementation of the referendum result by the Royal prerogative simply becomes a legally unreviewable high-policy decision to which reviewable concepts of law, such as a material considerations, are irrelevant.

    (My strong view is that the courts have a duty, and not a discretion, to find the claims are justiciable because determination of these claims – which the courts have already found raise matters of constitutional importance – demands statutory construction, which, crucially, is an exclusive jurisdiction of the courts under our constitution. I also believe the claims have no substantive merit because a Pepper v Hart reading on the, I believe, probatively determinant evidence of Government proposer Philip Hammond’s statements at second reading in the Commons would, in my view, lead the courts to the invevitable construction that the European Union Referendum Act 2015 provided for a statutory decision on the referendum question.)

    However, uncertainties arising from this crucial part of the defence have also been picked up in the interested party’s skeleton signalled by the words “appears to be common ground” (raising the question in my mind of whether the defence has been pleaded on an inconsistent basis):

    “16. …It is clear from the terms of the European Referendum Act 2015 that the referendum was consultative and the result did not itself constitute a decision to withdraw from the EU in domestic law terms.[footnote10] This appears to be common ground. [footnote 11] On this point, the People’s Challenge IPs adopt the submissions in the Dos Santos skeleton, §§37-44.”

    The interested party here relies on Parliamentary evidence of, I believe, arguably very dubious probative value since it is not a clear statement to Parliament by a Government proposer of the Bill (see the ratio of Pepper v Hart), namely, House of Commons Library Briefing Paper (No. 07212, 3 June 2015):

    “[Footnote] 10 This was well known to Parliament before the Bill was enacted. In a House of Commons Library Briefing Paper (No. 07212, 3 June 2015) it is said, at p. 25: “[The Bill] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions… The UK does not have constitutional provisions which would require the results of a referendum to be implemented.” It is telling that this assumes that the implementation of the referendum would need legislation.”

    Footnote 11 expressly states the defence is “ambiguous” on this crucial point:

    [Footnote] 11 See the Secretary of State’s Detailed Grounds, §12(2)-(3), although §5(2) of the Detailed Grounds is ambiguous, referring to the decision to leave the UK being “articulated” in the referendum result.

    In essence, I believe the interested party are here anticipating the defence that I have proposed (that the 2015 Act provided for a statutory decision on the referendum question on a Pepper v Hart reading) but which has not yet been made by the defendant in its 2 September 2016 “Detailed grounds of resistance on behalf of the Secretary of State”.

    The interested party appears not to refer to the relevant authority, namely, Pepper v Hart, although this line of authority will of course be very well known to the President of the Queens Bench Division, who will preside over the Divisional Court that hears the case.

    The defence’s skeleton argument does not yet appear to be in the public domain. Cranston; J’s order merely clarifies that parties can publish their own skeletons.

    • Richard Allen
      October 3, 2016

      The only comparable referendum is the 1975 referendum which was fully accepted as advisory and which was followed by a free vote. See Hansard where Mrs Thatcher gives an excellent explanation as to why a referendum is advisory. It would be somewhat inconsistent to apply a different understanding to the current situation.

    • Sean Feeney
      October 7, 2016

      The President of the Queen’s Bench Division Sir Brian Leveson heard, with others, the directions hearing. The October hearing will be heard, with others, by Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales.

  315. Richard Allen
    October 3, 2016

    Essential reading for anyone who has posted here. The 1975 Referendum debate from Hansard. The referendum was seen as advisory and was followed by a free vote. Mrs Thatcher makes a very good case as to why referendums should not be used for such matters and whyt Parliament is sovereign. Rather ironic …..

  316. Sean Feeney
    October 5, 2016

    There is an interesting analysis of the Government’s defence in its detailed grounds of resistance by Professor Mark Elliott which crticallyengages with the Government’s response to the Barber-Hickman argument:

    One of the reason’s Professor Elliott’s analysis is extremely problematic, albeit interesting, is that it is an analysis of incomplete case materials as though they were complete. But it does have the advantage of actually being legal analysis rather than the clearly partial rhetorical advocacy that has dominated the debate on the UKCLA blog.

    Crucially, the Government’s skeleton argument, which would expand on the contentions in the detailed grounds of resistance with submissions of law based on legal authority is not included in Professor Elliott’s partial analysis even where the authority that the Government is likely to rely on can be anticipated with some confidence.

    So Professor Elliott states

    “A further oddity in the Government’s treatment of the core issues relates to its argument that “the possibility of the exercise of prerogative powers” can be removed only by “an express restriction” in primary legislation. This proposition is advanced on the authority of a case decided in 1615.”

    It is, I think, highly likely that the Government will rely on the ratio of the more recent case of R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1993] EWHC Admin 4.

    LJ LLoyd: “When Parliament wishes to fetter the Crown’s treaty making power in relation to Community law, it does so in express terms, such as one finds in section 6 the 1978 Act. Indeed, as was pointed out, if the Crown’s treaty making power were impliedly excluded by section 2(1) of the 1972 Act, section 6 of the 1978 Act would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the Treaty of Rome.”

    Perhaps more interestingly, Professor Elliott, while correctly picking up the “tension” between the various elements of the defence on the the nature of the 2015 Act, continues to argue “The reality is that the outcome of the advisory referendum does not constitute a “decision” for the purpose of Article 50(1), meaning that there is presently no such decision that must or can be notified under Article 50(2).”

    While it is unclear if the Government will rely on the Pepper v Hart [1993] AC 593 reading of the 2015 Act – as providing for the UK’s statutory decison – that I have strongly advocated, I think it is clear that Professor Elliott’s reliance on Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 is misplaced;

    “Lord Dyson MR said that “by passing the [European Union Referendum Act 2015], Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum” and that the Act, by providing for a referendum, “contains part of the constitutional requirements of the UK as to how it may decide to withdraw from the EU” (my emphasis). The clear implication is that the holding of the referendum is not exhaustive of the constitutional requirements for the making of an Article 50(1) decision, and that the mere fact that the referendum has been held and has yielded a result does not establish that a decision has been made.”

    Shindler is, I think, clearly distinguishable from the Brexit litigation in that the decision-maker for the leave decison was not the question of law that Shindler had to decide. A declaration of the “constitutional requirents” is precisely the relief sought by one of the parties.

    The statutory construction of the 2015 Act that occurred in Shindler, should be the central question of law in the Brexit litigation, in my view.

  317. Sean Feeney
    October 5, 2016

    The House of Commons Library Briefing Paper relied on by the People’s Challenge interested party refers to House of Lords, Select Committee on the Constitution, 12th Report of Session 2009–10, Referendums in the United Kingdom, HL Paper 99, which discusses whether referendums are advisory or legally binding.

    The report simply ignores the possible relevance of a Pepper v Hart reading of a referendum enabled by statute to reach the consequently flawed conclusion at paragraph 193 “Despite referendums in the UK being legally advisory”.

  318. Sean Feeney
    October 6, 2016

    Mr Justice Maguire has stated the Belfast High Court may still reconvene to reconsider stay issues even though hearings have now concluded ““What I suspect is going to happen is that at some stage the court will reconvene to discuss the situation vis a vis the stay issues.”

    This would allow consideration of when the Belfast High Court will give its judgment and potentially avoid divergent judgments in the High courts of Belfast and London.

  319. Sean Feeney
    October 8, 2016

    The Skeleton Argument of the Secretary of State for Exiting the European Union was published on 6 October 2016 by the Department for Exiting the European Union:

    The answer to the claim that the referendum was “advisory” cites Hansard evidence but Pepper v Hart does not appear to be cited as authority.

    The defence is relying on Rees-Mogg “It has already been noted above that the Divisional Court in Rees-Mogg held any restriction upon the Crown’s prerogative powers in relation to the EU Treaties must be express.”

    Thus the apparent conflict between the ratios of Pepper v Hart and Rees-Mogg does not appear to be addressed by the skeleton.

  320. Sean Feeney
    October 10, 2016

    “The question of whether a constitutionally valid decision to leave the EU has been taken, and who may lawfully take that decision, is one of the issues that the Court must decide in this litigation” according to a 4 October 2016 “Clarificatory note on behalf of the People’s Challenge Interested Parties” prepared for the court and published by solicitors Bindmans.

    The clarification note contends that the “outcome of the referendum” was “advisory”.

    There may be a very real conflict between Court documents/litigation correspondence/pre-action correspondence and the public statements of the Government, the Conservative Party, and Prime Minister May, and ex-Prime Minister Cameron.

    My current reading is that the defence is eliding a domestic decision to leave the European Union with a decision to “implement” either that “decision” or a “decision” to invoke/trigger article 50″ “either in domestic or international law.

    The defence is expressly predicated on a distinction between domestic and international law.

    If so, this can and should be resolved by the parties to the litigation under the continuing duty of candour they owe to the Court in judicial review.

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  322. Sean Feeney
    October 11, 2016

    There is an interesting but remarkably confused commentary “On whether the Article 50 decision has already been taken” by Mark Elliott and Alison Young:

    Elliott and Young seem to share my view, in comments above, that the defence is eliding a number of decisions.

    However, my view is that he clear basis on which the defence put its case in its detailed grounds of resistance (DGR) is that the Article 50(1) decision by the UK to leave the EU was taken under the Royal Prerogative.

    The central question of law/fact was correctly identified in the interested party’s clarification note, link given by me above and by Elliott and Young: “the question of whether a constitutionally valid decision to leave the EU has been taken, and who may lawfully take that decision, is one of the issues that the Court must decide in this litigation.”

    I believe the confusion is because there are statements in both the defence’s DGR and skeleton argument that are consistent with (and evidence from Hansard, if admissible under the Pepper v Hart jurisdiction, that is material to) a defence that has not yet been made; namely, that the 2015 Act provided for a referendum that was the United Kingdom’s statutory decision to leave the UK .

    It is currently unclear if the defence at the hearing will be (as I have advocated) that the 2015 Act provided, on a Pepper v Hart reading, for the the outcome of the referendum to be the UK’s domestic statutory decision to leave the EU.

    Astonishingly, the interested party’s clarification note seems to misunderstand (despite this being clear from lead claimant Miller’s skeleton argument; see my comments above) that there are two material decisions:

    1. the Article 50(1) decision by the UK to leave the EU (Miller has common ground with the defence that this is a non-justiciable high-policy decision. This is simply wrong on a Pepper v Hart reading because a statutory decision would be justiciable).
    2. the decision actually being challenged by Miller in her judicial review claim; an article 50(2) decision that has not yet been taken.

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  327. Paul 'Gol' Williams
    October 17, 2016

    Much of the argument seems to revolve round the mandate given by the British people for Brexit. They did NOT, repeat NOT, give such a mandate.

    The Act creating the referendum was silent about what a majority meant. It was slipshod legislation because most referenda on constitutional require a supermajoprity – for example the recent referendum in Hungary, where an overwhelming majority voted yes failed because fewer than 50% of the electorate voted.

    Because the Referendum Act was silent on the matter I suggest we are entitled to look elsewhere for guidance, and in particular the Trade Union Act 2016. This stipulates that unions calling a strike in important public services must have at least 40% of the total electorate voting for the said action for a majority vote to be valid.

    It could be argued that Brexit is a more important matter than a strike on Southern Rail. The percentage of the total electorate voting for Brexit was 37.4%, so it did not even reach the level required by the Trade Union Act 2016. I would argue that under these circumstances the Government has not got a mandate to go ahead and leave the EU without a vote in Parliament.

    • Richard Allen
      November 23, 2016

      But it’s the “Will of The People” don’t you know…a phrase as despicable as “Take Back Control”

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  331. Phil Dyer
    November 2, 2016

    I have a different take on the assertion that Article 50, once triggered, cannot be revoked.

    I am no lawyer, but I believe that in any interpretation of law, the intention behind the law can be very important in the interpretation of the words actually used in the final document. So the EU Praesidium’s comments on the draft of Article 50 is very relevant.


    “The Praesidium considers that, since many hold that the right of withdrawal exists even in the absence of an explicit provision to that effect, withdrawal of a Member State from the Union cannot be made conditional upon the conclusion of a withdrawal agreement. Hence the provision that withdrawal will take effect in any event two years after notification.”

    Thus the 2 year limit (time from Article 50 notification to actual withdrawal) was included in order to give power to the withdrawing State to leave, even in the absence of a concluded agreement. Its intention was not to force the withdrawing State to leave in that time, but rather to give it the power to do so.

    That being the case, surely the the provision (that withdrawal will take effect in any event two years after notification) cannot have any effect in preventing the Member State from changing its mind and withdrawing its Article 50 notification.

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  336. TexTheLaw
    November 4, 2016

    Reblogged this on TexTheLaw and commented:
    Reblogging for the language of the arguments in the piece and more so for the civility in the comments in spite of the highly contentious nature of the subject matter.

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  338. Kevin
    November 5, 2016

    When the naive Parliament approved the incompetent EU’s sovereignty-subordinating treaty, it gave legal authority to the EU regarding Article 50.
    The UK head of state can invoke Article 50 under EU law, not UK law. The Parliament, having already approved the EU, has no say in the matter.

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  351. Christopher Gough
    January 24, 2017

    Well done. You made a compelling case.

    • R Allen
      January 24, 2017

      Yes Bravo

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