UK Constitutional Law Association

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Mark Elliott and Stephen Tierney: The House of Lords Constitution Committee Reports on Article 50

Mark Elliott--Stephen TierneyThe House of Lords Constitution Committee today publishes its report on the process by which the United Kingdom will withdraw from the European Union, a process that will result “in the most significant changes to the UK’s constitution in a generation”. The Committee accepts that the referendum result is clear and therefore must be implemented, but it is also firmly of the view that Parliament must be involved: “The Government should not trigger Article 50 [TEU] without consulting Parliament.”

Parliament, the Executive and Article 50

Turning to Article 50, the Committee accepts that the process it sets out offers the only “viable” route by which withdrawal can be effected. It then addresses whether a notification under this provision might later be revoked unilaterally by the United Kingdom. The Committee considers the legal position to be unclear but notes that, should any attempt to do so by the UK be disputed by another member state, the matter would be decided by the Court of Justice. On this basis, and given that the uncertainty would only ever be resolved after Article 50 had already been triggered, the Committee deems it prudent for Parliament to work on the assumption that the triggering of Article 50 is an action that the UK cannot unilaterally reverse.

Article 50 of course leaves discretion to any Member State to decide to withdraw from the Union “in accordance with its own constitutional requirements.” The Committee observes that neither the question put to the electorate nor the provisions of the European Union Referendum Act 2015 set out how or when withdrawal should take place. Accordingly, the focus of most of the report is upon the respective roles and responsibilities of both Government and Parliament in managing the withdrawal process.

The issues surrounding the triggering of Article 50, and the appropriate role for Parliament in this process, will of course be aired before the High Court in October. In those proceedings, it will be argued that triggering Article 50 will lead inevitably to the repeal of the European Communities Act 1972, thereby affecting citizens’ statutory rights incorporated thereby. These impending consequences, it is argued, prevent the UK Government from activating Article 50 by way of the royal prerogative, requiring instead statutory authorisation by Parliament. The Government, on the other hand, maintains that it can invoke Article 50 as an act of the prerogative, and that “there is no legal obligation to consult Parliament on triggering Article 50” (HL Deb, 18 July 2016, col 430 [Lords Chamber]). Since the issue is subject to live proceedings, the Committee opts not to express a view on the differing legal arguments. Instead it focuses upon whether, and if so how, it would be constitutionally appropriate for Parliament to be involved, irrespective of whether or not the courts decide that statutory authority for triggering Article 50 is a legal requirement.

To this end, Parliament should play a “central role” not only in the decision to trigger Article 50 but also during the negotiation process itself and at the point where the negotiated package is agreed and adopted. The Committee also anticipates that this role should continue, with parliamentary scrutiny of any ongoing relationship between the United Kingdom and the EU. Significantly, the Committee asserts that it is for Parliament itself to determine how it will be involved at each of these stages in the withdrawal process.

The nature and degree of Parliament’s involvement

The Report proceeds to consider two matters concerning Parliament’s involvement—namely, whether that involvement should take the form of the enactment of legislation or the passing of a resolution, and the scope of the matters that ought to be addressed by any such legislation or resolution.

As to the first matter, the Committee notes that the two mechanisms each have their own attractions and drawbacks. A resolution would be capable of being adopted more swiftly than legislation could be enacted, and would therefore enable Parliament rapidly to set out its position. The Committee sees a strong case for resolutions of both Houses (rather than just of the Commons) but notes the risk of differently worded motions being passed.

Legislation, the Committee notes, would entail different risks (as well as opportunities). Legislating would likely take longer, and doing so might invite complications so far as the territorial constitution is concerned, given the possibility of devolved legislatures choosing to vote on legislative consent motions in relation to any Bill. That said, the Committee takes the view that the Sewel Convention would not actually apply: triggering Article 50, it says, would not engage devolved matters or affect the scope of devolved competence—and, in any event, legislating to give effect to the referendum outcome could be considered to amount to circumstances that are not “normal” within the meaning of the Convention.

The Report also highlights certain attractions of legislation—two in particular. In the first place, the Committee notes that while a resolution could be used to signal Parliament’s assent to the triggering of Article 50, only legislation could place beyond doubt any questions about where authority lies to pull the trigger. Second, the Committee notes that any legislation enacted on this matter would become part of the UK’s “constitutional requirements” for the purpose of Article 50. In this way, the Committee suggests, Parliament could leverage existing uncertainty concerning the existence and content of such requirements by choosing legislatively to prescribe them. In doing so, Parliament could “take control of the process by which Article 50 was to be triggered”. For instance: “an Act could state that Parliament authorised the UK Government to trigger Article 50 if—and only if—the Government had first presented for parliamentary approval its proposal for the UK’s new relationship with the EU on the basis of which it intended to negotiate.

The Committee ultimately does not come down decisively on the side of either a resolution or legislation, instead emphasising that what is crucial is that the use of one or other of those mechanisms enables Parliament to play an appropriate constitutional role in the triggering of Article 50. As to the scope of any resolution or legislation, the Committee notes that Parliament will need to decide whether to focus simply upon the triggering of Article 50 or to set out a more detailed “route map” as to its involvement throughout the Brexit process. A resolution or Bill might, for instance, require Ministers to report to Parliament at various stages in the negotiation process; set out the extent and form of any parliamentary involvement in that process; and determine at what stages, if any, Parliament’s consent to the continuation of negotiations should be required. In deciding whether such details should be included in a resolution or Bill, the Committee observes that a balance will have to be struck between “the benefits of parliamentary involvement in the negotiation process” and a degree of over-prescriptiveness that would risk “hobbling the Government’s ability to negotiate”.

Concluding remarks

The Report offers broader reflections about the future use of referendums in the United Kingdom, as well as the interplay between prerogative powers in the area of foreign affairs on the one hand, and constitutional conventions on the other.

It is of course possible for the UK Parliament to provide that a referendum is to have a legally binding outcome; the referendum held in 2011 on the use of the Alternative Vote is an example. It can be argued that the 2015 Act should have been more detailed in setting out what would happen in the event of a Leave vote, and in particular what the respective roles for Government and Parliament ought to be in the process that would flow from it. On this basis the Committee recommends that Parliament may wish, in future, “to ensure that detailed consideration is given to how the result of a referendum will be implemented in advance of the vote itself occurring, and to whether explicit provision should be made in the enabling legislation either to implement the outcome automatically or to instruct the Government to act on the result.”

The Committee also draws an analogy between triggering Article 50 and the prerogative power to go to war or to deploy the UK’s armed forces. The Committee, in a report published in 2013, took the view that there is now a convention that “save in exceptional circumstances, the House of Commons is given the opportunity to debate and vote on the deployment of armed force overseas” (para 64). While it accepts that no convention has formed to govern how Parliament should be involved in enacting and ratifying the result of a referendum, the Committee considers there to be a “strong argument that enacting the result of a referendum of this magnitude should require at least the same level of parliamentary involvement as a decision to authorise a military deployment.” The Committee therefore avers that it would be “constitutionally unacceptable, not to mention setting a disturbing precedent, for the Government to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences”.

Triggering the Article 50 process is, in itself, of huge significance, heralding as it does the United Kingdom’s withdrawal from a treaty system within which it has been closely integrated for over forty years, and which has exerted profound and far-reaching influences upon both the UK’s constitution and the daily lives of its citizens. But the controversy that is now playing out in respect of Article 50—and the broader associated questions concerning how and by whom Brexit should be taken forward—also highlights the tensions that exist within our unwritten system over the respective roles for the public, the executive and the legislature in both initiating and giving effect to constitutional change.

In what is still—judged by reference to the timescale over which Brexit is likely to play out—the immediate aftermath of the referendum, it may seem inapposite to focus upon how future major constitutional changes should be managed. But for two reasons, the opposite is true. For one thing, the UK will inevitably have to confront further significant—and perhaps even existential—questions about its constitutional future. Learning from the experience, and arguably the mistakes, of Brexit would be prudent; failing to do so would be, at best, negligent. Second, the referendum might, for many, have felt like the end—and it certainly did mark at least the beginning of the end of the UK’s current constitutional position vis-à-vis the EU. However, just as devolution was famously said to be a “process not an event”, it is also the case that Brexit—and the questions to which it gives rise about the UK’s new relationship with the EU—is likely to be an issue that runs and runs. For that reason, it is crucial that clarity be brought to bear upon where constitutional responsibility lies not merely for triggering Article 50 but in respect of the lengthy and vastly complicated process of negotiation and legal and constitutional change that will follow in the wake of Article 50’s activation. That Parliament should play a major role in that process is a strongly defensible if ultimately contestable argument. But the proposition that as the Brexit process begins in earnest there should at the very least be certainty in this area—whatever division of responsibility is ultimately settled upon—is surely incontrovertible.

Mark Elliott is Professor of Public Law at the University of Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They both serve as Legal Advisers to the House of Lords Constitution Committee. They have written this post in purely personal capacities.

(Suggested citation: M. Elliott and S. Tierney, ‘The House of Lords Constitution Committee Reports on Article 50’, U.K. Const. L. Blog (13th Sept 2016) (available at https://ukconstitutionallaw.org/))

16 comments on “Mark Elliott and Stephen Tierney: The House of Lords Constitution Committee Reports on Article 50

  1. Aileen McHarg
    September 13, 2016

    Two comments on the Sewel Convention point. First, if it is accepted that UK legislation is required to trigger Art 50 because of its necessary implications for the European Communities Act, surely the same arguments would apply to amendments to the devolution statutes? So, I don’t see how the Committee can consistently decline to take a view on the legal arguments around the triggering of Article 50, yet confidently conclude that Sewel would not be engaged by legislation authorising withdrawal. Secondly, triggering Art 50 *could* be regarded as being outside the ‘normal’ range of matters engaging the convention. Whether that would be a prudent line to take is another matter entirely …

  2. Willson, LL.B
    September 13, 2016

    Painfully obvious to me that the “Leaping Leavers” of the Sunderland area who post comments about “Brexit” on our local newspaper’s website have not a clue about the basis of legally examining how the Article 50 notification process should be triggered and the role of both Houses in examining the potential role of the Parliament that they helped to elect in this, and appear to be blissfully unaware of the litigation that is pending…

  3. Antony Carter
    September 13, 2016

    Your point Aileen is pertinent. The ‘devolution acts’ are constitutional acts’ as outlined in Laws LJ’s findings in Thorburn v Sunderland CC. However should it be determined the Sewell Convention is engaged, does that not give Scotland two bites of the cherry?

    Still defence in depth is a strong defence🙂

  4. Antony Carter
    September 13, 2016

    The finding by the HoL select committee, is I submit, telling. It underpins the contention that as the European Union Referendum Act 2015 was legislation passed by Parliament and not by the Executive under its exercise of the Royal Prerogative and that as Parliament made that legislation ‘advisory’ to it and not ‘binding’ upon it, it follows that it must fall to Parliament to determine what it makes of the ‘advice’ the electorate has given it and not to the Executive to act as if it was binding by exercising the Royal Prerogative to trigger Article 50. Advice given to Parliament is not an instruction to the Executive until or unless Parliament says so.

  5. Sean Feeney
    September 13, 2016

    Lord Pannick is one of the authors of this House of Lords report. He acts for the claimants against, effectively, the Government as Baron David Pannick QC, instructed by Mishcon de Reya.

    Also, the authors of this blog post advised this HoL committee, hence the timeliness of this blog post: “Professor Stephen Tierney and Professor Mark Elliott are the legal advisers to the Committee.”

  6. Sean Feeney
    September 13, 2016

    The referendum was clearly the first of a chain of processes and decisions in the domestic and international process of the United Kingdom leaving the European Union.

    Despite the seeming consensus on this blog to the contrary, I would not be suprised if the Court(s) found it attractive to construe the European Union Referendum Act 2015 either as a first mandatory decision binding on the Executive (or as a mandatory material consideration binding the Executive’s normally wide discretion in matters of high public policy) that the United Kingdom should initiate the process of leaving the European Union.

    Such an interpretation can be squared with Parliamentary Sovereignty,because that interpretation does not fetter Parliament’s residual power to pass an act preventing the United Kingdom leaving the European Union.

    This might involve a fundamental reconsideration, with a leapfrog appeal to the Supreme Court if necessary of the Pepper v Hart [1992] UKHL 3 line of authority in the context of widely publicised Ministerial Parliamentary statements on a fundamental constitutional bill that the Government would implement the referendum decision.

    It is open to the Courts to find that Parliament itself remitted the decision to the electorate specified in the 2015 Act.

  7. Sean Feeney
    September 13, 2016

    My mistake. Lord Pannick is a member of the Committee but “Lord Pannick recused himself from the inquiry because he is counsel for the Lead Claimant in the litigation mentioned in paragraph 16 of the report.”; see p. 17 of the report.

    One other Committee member declared specific interests in the report “Lord Hunt of Wirral:
    Partner, DAC Beachcroft LLP
    Chair, British Insurance Brokers Association
    Chair, Lending Standards Board
    Chair, Credit Union Expansion Project
    Chair, Global Risks
    Chair, Society of Conservative Lawyers
    Chair, Sir Edward Heath Charitable Foundation”

  8. Sean Feeney
    September 14, 2016

    The question of whether Parliament should vote on “retention of membership of the European Union” was raised at second reading of the European Union Referendum Bill by Mr David Hanson (Delyn) (Lab) (Hansard 9 Jun 2015 : Column 1052), and expressly rejected by the then Secretary of State for Foreign and Commonwealth Affairs (Mr Philip Hammond) as Government promoter of the Bill:

    “No. We made a proposal to the British people, it was put to the test in the general election and we have received an overwhelming mandate to progress. That is what we will do.”

    Parliament subsequently enacted the Bill in full knowledge of the fact that the Government’s purpose in promoting a statutory referendum was 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”.

    See Philip Hammond’s concluding remarks: “Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. 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. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

    (Hansard 9 Jun 2015 : Column 1052).

    http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150609/debtext/150609-0001.htm#15060939000001

    The Courts may yet deem these, and other Hansard materials, materially relevant to construction of the statutory purposes of the European Union Referendum Act 2015.

    If the Courts do not, then the electorate that voted in the referendum may deem the Court(s) failure to find such materials fully determinative of the claims now before the Court(s) very asinine indeed.

  9. Sean Feeney
    September 16, 2016

    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 stating the statutory purpose of the Bill was to make the British people the decision-maker on EU membership: “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

    http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150609/debtext/150609-0001.htm#15060939000001

    Mr David Hanson (Delyn) (Lab) raised the question of a vote on “the retention of membership of the European Union”. Mr Hammon rejected this proposal by reaffirming the Bill’s legitimacy arose from a General Election manifesto commitment: “No. We made a proposal to the British people, it was put to the test in the general election and we have received an overwhelming mandate to progress. That is what we will do.”

    Hansard 9 Jun 2015 : Column 1052

    Mr Hammond concluded by stating “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.”

    See his concluding remarks “”Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. 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. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

    Hansard 9 Jun 2015 : Column 1056

    The Courts may yet deem these, and other, Hansard materials are relevant to any statutory construction of the 2015 Act, despite the concluded view of the House of Lords Constitution Committee (during ongoing litigation that the Courts have publicly recognised raises matters of constitutional importance) that the referendum was “an advisory referendum only” (paragraph 17 of the HoL report).

    The electorate specified in the European Union Referendum Act 2015 may deem the Courts asinine if the Courts do not find these materials are fully determinative of the litigation now in progress, at least on the question of who is the statutory decison-maker.

    • Chris A
      September 22, 2016

      If it is not included in the act, Mr Hammond can say anything. If he wanted the authority to trigger Art. 50, he should simply have written that in the law. Not having done that is asinine.

      Supposed, I want to demolish a house by blasting – if my trigger is not wired to the charges but only to a display that lights up and says “explode!” if I push the button, I can say that I want to blow up that house as much as I want, it simply won’t blow up if I press the button.
      Figurativle spoken, that’s exactly what Cameron did: The electorate pushed the button, and the display lit up with “Brexit”. And since that moment, everybody is staring on the display, whishing they had wired it correctly, because they don’t really know what is necessary to get the charges to detonate…

  10. Willson, LL.B
    September 16, 2016

    So does that mean that I can give the notification required by Article 50?

    • Sean Feeney
      September 19, 2016

      If this interpretation is ultimatelt judged to be correct by the domestic Courts, it means that a decision to leave the Eurpean Union has already been made and that this decision is in line with the constitutional requirements of the UK.

      This means that notification may not be necessary to trigger article 50; it could be triggered by the domestic decision alone. That is ultimately a judgment for the Court of Justice of the European Union.

      In the first instance, it is open for the domestic courts to find it acte claire, without a preliminary reference to the CJEU, that Article 50 is triggerable by a decision to leave the UK; and that such a lawful decision was made in the referendum. If the referendum was a decision by the UK to leave the EU in domestic law, then the lodging and issuing of domestic legal claims would not alter the fact that the decision would always have been lawful – by the preumption of regularity.

  11. Antony Carter
    September 16, 2016

    Mr Hammond may have said that but he didn’t say it in the legislation. Absent an express statement in the legislation to the contrary it must be construed as advisory only. The courts are slow to interpret Hansard as determinative of the will of Parliament. Hammond’s statement should be read as his own interpretation of the Bill which is not to say that it reflects Parliaments will when they allowed the Bill to pass to the next stage. And if the courts find or do not find the material to be determinative of the law then the law is as it is found to be. The law is never asinine.

  12. #s
    September 19, 2016

    Applying a Pepper v Hart interpretation to the 2015 Act that the referendum was a constitutionally and Article 50 compliant decision to leave the European Union by the United Kingdom’s statutory decison-maker (provided for by Parliament itself) would have the advantage of avoiding a potentially very widespread public perception that the Courts had precipitated a genuine constitutional crisis (rather than merely a highly politicised debate about a clearly divisive referendum result) by delaying the high-policy objective of Brexit – a high policy objective with the precisely the dominant or ultimate purpose, in the Padfield sense on such an interpretation, of extinguishing the legal obligation to give European rights domestic direct effect.

    The constitutional legitimacy for Brexit comes from a constitutional process/procedure – now subject to authorative interpretation by the domestic Courts – proposed by a majority Government pursuant to a manifesto commitment, and initiated by Parliament by statute with the 2015 Act.

    But such a Pepper v Hart interpretation would have the potential disadvantage to the United Kingdom’s national interest (this is a actually an advantage for proponents of “hard Brexit”) of evidencing beyond doubt in a Court judgment that the UK had made an Article 50 compliant decision to leave the EU.

    This could mean the Article 50 two-year period to negotiate the terms of the UK’s new relationship with the EU after Brexit (if it happens) began on Thursday 23 June 2016. The final judgment is likely to be made by the Supreme Court after an expedited hearing in December, according to the Divisional Court that will hear the claims lodged in London, although this timetable may now alter because of the Northern Ireland claims.

    A Supreme Court judgment may render the Article 50 notification otiose because the Article 50 procedure is open to two interpretations: the trigger is the decision (of an intention to leave the EU) in Article 50(1): or the trigger is the notification in Article 50(2).

    I favour the interpretation that the trigger is the decision itself and not the notification, because: this is the first clause in a serial procedure and the European drafting practice in other triggerable legal instuments is to put the trigger at the start of the instrument; the English-language text suggests notification is a an obligation (“shall” is the language of duty), and Article 50 is asymetrically drafted to protect the rights of the European Union against the member state intending to leave – letting the leaving member state unilaterally decide when the two-year period begins potentially frustrates an interpretation that the two-year period’s purpose is to limit the time of uncertainty (and potential harm to their economic interests) for those member state’s not intending to leave.

    The interpretation is unclear without a domestic ruling (which may be forthcoming in the litigation) that one of the two possible interretations is acte claire without a preliminary reference to the CJEU.

    Ultimately it will be a matter for authorative ruling by the CJEU if internationa political disputes ever become international legal disputes.

  13. Jerzy Kolodziej
    September 29, 2016

    The situation is beyond ridiculous. The idea that Parliament should be excluded from the decision to leave the EU is a sad reflection on the state of politics and the law of the constitution of the UK. It is quite true that the situation could be resolved by a vote in Parliament. However, Parliament does not seem inclined to do so and would rather leave it for the courts to decide before putting their own necks on the block.

    It may be worth pointing out, yet again, that the triggering of Article 50 is likely to be irreversible. The reality is that when the UK joined the EC (as it was then) the executive prerogative decision was entirely reversible. If Parliament had not voted to effectively ratify the decision by approving the European Communities Act the UK would have had to withdraw and the prerogative would have had to be reversed.

    That is not the situation that we are faced with. Parliament could not reverse the triggering of Article 50 and the UK would be out. The obvious consequence is that Parliament would be bound to repeal the ECA. This is not a situation that the prerogative should be used without clear explicit authority from Parliament. It is effectively a return to the dispensing laws that the English Bill of Rights outlawed in 1689. The UK intends to use the very same prerogative powers that have been outlawed since over 328 years. This is not a matter that the courts can easily sidestep and I very much doubt that they will find favour with the government. Neither will they construe that the referendum (EURA) is binding when it was open to Parliament to have explicitly made it so.

    Bill of Rights 1688

    Dispensing Power.
    That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.

    The government have painted themselves into a corner that they will find it very difficult to find a way out of.

  14. Sean Feeney
    October 10, 2016

    Footnote 5 of the 30 September 2016 Skeleton Argument of the Secretary of State for Exiting the European Union (p. 9) agrees with the claimant Deir Dos Santos that “the doctrine of Parliamentary privilege prevents any reliance being placed upon the Committee’s conclusions ” – the conclusions of the House of Lords Select Committee on the Constitution report:

    ‘Mr Dos Santos also relies upon the recent report of the House of Lords Select Committee on the Constitution, The Invoking of Article 50 (HL Paper 44) as supporting his position with regard to the necessary role of Parliament (Skeleton Argument, §35(3)). The Secretary of State agrees with Mr Dos Santos that the doctrine of Parliamentary privilege prevents any reliance being placed upon the
    Committee’s conclusions and would add only that those conclusions are not in fact in accordance with the position of the claimant parties in this case. They were to the effect that Parliament could and should give approval to the triggering of Article 50 by a resolution of each House, rather than that primary legislation is legally required.’

    https://www.gov.uk/government/publications/skeleton-argument-of-the-secretary-of-state-for-exiting-the-european-union

    The defence skeleton confirms that the proposition advanced by the claimants that the referendum was “advisory” is in issue in the London claims.

    There is no express mention of Parliament’s sub judice rule in the defence skeleton, nor of the principle of comity.

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