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Parliament will trigger Article 50 - but it may legally still be possible to cancel Brexit

Legal experts believe they have found an escape hatch if Britain's negotiations turn out to be a damp squib. 

MPs have voted to trigger Article 50. The Lords now debating the Article 50 bill are unlikely to block Brexit. 

But campaigners believe there will still legally be an opportunity to cancel what they see as a slow motion constitutional and economic disaster. 

The People’s Challenge, one of the parties that, along with Gina Miller, forced the government to consult Parliament, has consulted lawyers about the next stage of the process.

According to the legal opinion written by three senior EU law specialists, there is an escape hatch at the end of the Brexit negotiations.

Sir David Edward, a former European Court of Justice judge, Sir Francis Jacobs, the ECJ’s former Advocate General, and the EU lawyer Sir Jeremy Lever believe that the EU can’t force Britain to leave. 

This means that MPs two years hence don’t have to choose between a terrible deal or no deal at all – they can also simply revoke Article 50 and go back to being full members of the EU.

Grahame Pigney, the founder of The People’s Challenge, told me: “We want to dispel the idea that there is a Hobson’s Choice [on taking the Brexit deal or leaving it]. 

“It is entirely reasonable and practicable to say ‘We will reserve that decision until the end of the process’.”

The legal opinion will raise hackles on Brexiteers who believe Remain campaigners aim to halt Brexit in the courts. But what does it actually argue?

What the legal opinion says

The legal opinion considers two main questions:

a) What are the constitutional requirements, as set out by Article 50, for the UK to withdraw from the EU?

b) If these constitutional requirements are not met, could the UK withdraw the Article 50 notice, or let it lapse? 

The lawyers argue that MPs must do more than vote on a Brexit deal – they must set out the terms in an act of Parliament. 

There is a well-established constitutional practice of Parliament legislating to require new international agreements, particularly those concerned with the European Union, to be approved by an Act of Parliament before they can take effect.

Then, considering the constitutional question, they say “there are very strong arguments” that triggering Article 50 means a country can leave the EU “subject to the fulfilment of such constitutional requirements”. 

Here’s the most crucial part of the opinion:

Therefore, if Parliament were to refuse to give legal effect to the terms of a withdrawal agreement negotiated with the European Union, or were to refuse to authorise withdrawal in the absence of any agreement, the notification given by the United Kingdom of its intention to leave the European Union could be treated as having lapsed (since the constitutional requirements required to give effect to that intention had not been met), or could be unilaterally withdrawn.

What this means

Pigney says his campaign group commissioned this legal opinion to give parliamentarians guidance, rather than to mount another challenge in the courts – although he doesn’t rule out one later on in the game. 

As he put it to me: “Whether there is a court case depends on the climate in the UK when we know what a deal is and whether the government is going to try to push something past that is plainly not in the interests of the people.

“Yes, a decision was made, but people can change their minds.”

Although the Prime Minister has confirmed Brexit will mean leaving the single market, and one recent Daily Mirror poll found hints of “Bregret”, most polling so far has suggested those who voted Leave are still happy with the way they voted. 

But as Pigney points out, the Brexit negotiation process is likely to take two years, if not more. And by that point, the mood of the country may be very different. 

 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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"We repealed, then forgot": the long shadow of Section 28 homophobia

Why are deeply conservative views about the "promotion" of homosexuality still being reiterated to Scottish school pupils? 

Grim stories of LGBTI children being bullied in school are all too common. But one which emerged over the weekend garnered particular attention - because of the echoes of the infamous Section 28, nearly two decades after it was scrapped.

A 16-year-old pupil of a West Lothian school, who does not wish to be named, told Pink News that staff asked him to remove his small rainbow pride badge because, though they had "no problem" with his sexuality, it was not appropriate to "promote it" in school. It's a blast from the past - the rules against "promoting" homosexuality were repealed in 2000 in Scotland, but the long legacy of Section 28 seems hard to shake off. 

The local authority responsible said in a statement that non-school related badges are not permitted on uniforms, and says it is "committed to equal rights for LGBT people". 

The small badge depicted a rainbow-striped heart, which the pupil said he had brought back from the Edinburgh Pride march the previous weekend. He reportedly "no longer feels comfortable going to school", and said homophobia from staff members felt "much more scar[y] than when I encountered the same from other pupils". 

At a time when four Scottish party leaders are gay, and the new Westminster parliament included a record number of LGBTQ MPs, the political world is making progress in promoting equality. But education, it seems, has not kept up. According to research from LGBT rights campaigners Stonewall, 40 per cent of LGBT pupils across the UK reported being taught nothing about LGBT issues at school. Among trans students, 44 per cent said school staff didn’t know what "trans" even means.

The need for teacher training and curriculum reform is at the top of campaigners' agendas. "We're disappointed but not surprised by this example," says Jordan Daly, the co-founder of Time for Inclusive Education [TIE]. His grassroots campaign focuses on making politicians and wider society aware of the reality LGBTI school students in Scotland face. "We're in schools on a monthly basis, so we know this is by no means an isolated incident." 

Studies have repeatedly shown a startling level of self-harm and mental illness reported by LGBTI school students. Trans students are particularly at risk. In 2015, Daly and colleagues began a tour of schools. Shocking stories included one in which a teacher singled out a trans pupils for ridicule in front of the class. More commonly, though, staff told them the same story: we just don't know what we're allowed to say about gay relationships. 

This is the point, according to Daly - retraining, or rather the lack of it. For some of those teachers trained during the 1980s and 1990s, when Section 28 prevented local authorities from "promoting homosexuality", confusion still reigns about what they can and cannot teach - or even mention in front of their pupils. 

The infamous clause was specific in its homophobia: the "acceptability of homosexuality as a pretended family relationship" could not be mentioned in schools. But it's been 17 years since the clause was repealed in Scotland - indeed, it was one of the very first acts of the new Scottish Parliament (the rest of the UK followed suit three years later). Why are we still hearing this archaic language? 

"We repealed, we clapped and cheered, and then we just forgot," Daly says. After the bitter campaign in Scotland, in which an alliance of churches led by millionaire businessman Brian Souter poured money into "Keeping the Clause", the government was pleased with its victory, which seemed to establish Holyrood as a progressive political space early on in the life of the parliament. But without updating the curriculum or retraining teaching staff, Daly argues, it left a "massive vacuum" of uncertainty. 

The Stonewall research suggests a similar confusion is likely across the UK. Daly doesn't believe the situation in Scotland is notably worse than in England, and disputes the oft-cited allegation that the issue is somehow worse in Scotland's denominational schools. Homophobia may be "wrapped up in the language of religious belief" in certain schools, he says, but it's "just as much of a problem elsewhere. The TIE campaign doesn't have different strategies for different schools." 

After initial disappointments - their thousands-strong petition to change the curriculum was thrown out by parliament in 2016 - the campaign has won the support of leaders such as Nicola Sturgeon and Kezia Dugdale, and recently, the backing of a majority of MSPs. The Scottish government has set up a working group, and promised a national strategy. 

But for Daly, who himself struggled at a young age with his sexuality and society's failure to accept it, the matter remains an urgent one.  At just 21, he can reel off countless painful stories of young LGBTI students - some of which end in tragedy. One of the saddest elements of the story from St Kentigern's is that the pupil claimed his school was the safest place he had to express his identity, because he was not out at home. Perhaps for a gay pupil in ten years time, that will be a guarantee. 

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