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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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Charlottesville: a town haunted by the far right

Locals fear a bitter far right will return.

On 12 August, a car ploughed down pedestrians in the street where I used to buy my pecan pies. I had recently returned to London from Charlottesville, Virginia – the scene of what appears to have been an act of white supremacist terrorism – having worked and taught at the university there for four years. While I unpacked boxes of books, the streets I knew so well were full of hate and fire.

The horror began on the evening of Friday 11 August, when thugs with torches marched across the “Lawn”. Running through the heart of the university, this is where, each Halloween, children don ghoulish costumes and trick-or-treat delighted and generous fourth-year undergraduates.

But there were true monsters there that night. They took their stand on the steps of the neoclassical Rotunda – the site of graduation – to face down a congregation about to spill out of St Paul’s Episcopal opposite.

Then, on Saturday morning, a teeming mass of different groups gathered in Emancipation Park (formerly Lee Park), where my toddler ran through splash pads in the summer.

We knew it was coming. Some of the groups were at previous events in Charlottesville’s “summer of hate”. Ever since a permit was granted for the “Unite the Right” march, we feared that this would be a tipping point. I am unsure whether I should have been there, or whether I was wise to stay away.

The truth is that this had nothing to do with Charlottesville – and everything to do with it. From one perspective, our small, sleepy university town near the Blue Ridge Mountains was the victim of a showdown between out-of-towners. The fighting was largely not between local neo-Nazis and African Americans, or their white neighbours, for that matter. It was between neo-Nazis from far afield – James Alex Fields, Jr, accused of being the driver of the lethal Dodge Challenger, was born in Kentucky and lives in Ohio – and outside groups such as “Antifa” (anti-fascist). It was a foreign culture that was foisted upon the city.

Charlottesville is to the American east coast what Berkeley is to the west: a bastion of liberalism and political correctness, supportive of the kind of social change that the alt-right despises. Just off camera in the national newsfeeds was a banner hung from the public  library at the entrance of Emancipation Park, reading: “Proud of diversity”.

I heard more snippets of information as events unfolded. The counter-protesters began the day by drawing on the strength of the black church. A 6am prayer meeting at our local church, First Baptist on Main (the only church in Charlottesville where all races worshipped together before the Civil War), set the tone for the non-violent opposition.

The preacher told the congregation: “We can’t hate these brothers. They have a twisted ideology and they are deeply mistaken in their claim to follow Christ, but they are still our brothers.” Then he introduced the hymns. “The resistance of black people to oppression has only been kept alive through music.”

The congregation exited on to Main Street, opposite my old butcher JM Stock Provisions, and walked down to the statue of Meriwether Lewis and William Clark – the early 19th-century Bear Grylls types who explored the west. They went past Feast! – the delicacy market where we used to spend our Saturday mornings – and on to the dreamy downtown mall where my wife and I strolled on summer evenings and ate southern-fried chicken at the Whiskey Jar.

The permit for the “protest” was noon to 5pm but violence erupted earlier. Between 10.30am and 12pm, the white supremacists, protected by a paramilitary guard, attacked their opponents. As the skirmishes intensified, police were forced to encircle the clashing groups and created, in effect, a bizarre zone of “acceptable” violence. Until the governor declared a state of emergency, grown men threw bottles of piss at each other.

At noon, the crowd was dispersed and the protesters spilled out into the side streets. This was when the riot climaxed with the horrific death of the 32-year-old Heather Heyer. Throughout Saturday afternoon and evening, the far-right groups marauded the suburbs while residents locked their doors and closed their blinds.

I sat in London late into the night as information and prayer requests trickled through. “There are roughly 1,000 Nazis/KKK/alt-right/southern nationalists still around – in a city of 50,000 residents. If you’re the praying type, keep it up.”

No one in Charlottesville is in any doubt as to how this atrocity became possible. Donald Trump has brought these sects to group consciousness. They have risen above their infighting to articulate a common ground, transcending the bickering that mercifully held them back in the past.

In the immediate aftermath, there is clarity as well as fury. My colleague Charles Mathewes, a theologian and historian, remarked: “I still cannot believe we have to fight Nazis – real, actual, swastika-flag-waving, be-uniformed, gun-toting Nazis, along with armed, explicit racists, white supremacists and KKK members. I mean, was the 20th century simply forgotten?”

There is also a sense of foreboding, because the overwhelming feeling with which the enemy left was not triumph but bitterness. Their permit had been to protest from noon to 5pm. They terrorised a town with their chants of “Blood and soil!” but their free speech was apparently not heard. Their safe space, they claim, was not protected.

The next day, the organiser of the march, Jason Kessler, held a press conference to air his grievances. The fear is that the indignant white supremacists will be back in greater force to press their rights.

If that happens, there is one certainty. At one point during the dawn service at First Baptist, a black woman took the stand. “Our people have been oppressed for 400 years,” she said. “What we have learned is that the only weapon which wins the war is love.”

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear