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11 July 2016updated 09 Sep 2021 11:23am

Triggering Article 50 could be illegal despite the EU referendum result

The legal Catch 22 that requires a Commons vote, which could fox Brexit.

By Mark Stephens

It is slightly sub-optimal that politicians who, in their business, fairly routinely stab one another in the back and more recently have been busily stabbing one another in the front, haven’t taken a moment to consider unintended collateral injuries to the populace.

Had they done so, rather than being distracted climbing the political dung heap, they would (and should) have commissioned the attorney general and the Government’s legal advisers to advise on the constitutional implications and the legal process for implementing an Article 50 notice to leave the European Union. Article 50 of the Lisbon Treaty sets out the framework for the formal notice required under the rules of the European Union for a country to give two years’ notice of its decision to withdraw from the European Union. Much pain and anxiety would have been obviated to those concerned about their status to remain and run businesses in the UK, had our politicians taken legal advice on this.

The legal position is relatively straightforward:

The recent EU referendum result – or “Brexit” – is merely advisory and not binding on Members of Parliament.

By comparison, what is binding on Parliament, and indeed every citizen including the Prime Minister, is the European Communities Act 1972. This was an act of Parliament which said not only would we join and remain members of the European Union but also that certain European Union law would have direct applicability into our own domestic legislation.

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Many Brexiteers complained bitterly about the loss of so-called “parliamentary sovereignty” but this conveniently ignores the fact that it is an Act of our own sovereign Parliament which ceded power to Brussels.

It is being incorrectly promulgated that the Government can trigger Brexit under Article 50 of the Lisbon Treaty, merely by sending a note to Brussels. This is fundamentally wrong. Article 50 says:

“Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.”

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Our own constitutional requirements require that the European Communities Act 1972 first be repealed as a predicate to sending any Article 50 notice to Brussels.

Jean-Claude Juncker, president of the European Commission, is continually goading Britain to send an Article 50 notice: the law says the UK’s constitutional arrangements mean that we cannot. Much needed legal certainty should have been injected into a political discourse which so far has more heat than light.

To repeal the European Communities Act in parliament becomes a much more challenging issue because in Parliament there are about 140 pro-Brexit MPs and about 650 MPs in total. So, it is far from clear that the Brexiteers have the necessary majority in Parliament to repeal the European Communities Act.

Clearly, some Members of Parliament will feel obliged to follow the wishes expressed in the referendum, but it is far from clear that, for example, the Irish or the Scots who voted overwhelmingly to remain would do so. Similarly, there are a number of Members of Parliament in metropolitan areas which also voted overwhelmingly to remain and they too would feel less inclined to change their position.

This is where we get to Realpolitik. Against this legal backdrop are Members of Parliament going to slavishly follow the referendum or are they going to look more closely at the number of votes cast in their own constituencies? If a member believes that they will not be deselected on the grounds that they vote with their conscience to remain, then it seems that the referendum may be nothing short of legal political huff and puff without the wherewithal to blow the European house down.

I can well see this whole episode dribbling past another election where an alternative mandate is put into place of not repealing the European Communities Act and they will be able to say legitimately that they have been elected on an alternative platform to the referendum.

As for European laws, those laws that we have already inherited from the European Union over the last 44 years will remain in place and, if Article 50 is triggered, they will have to be changed as we move forward, so the legal system of this country will remain stable and predictable for the foreseeable future.

This article was originally published by Spears.

Mark Stephens CBE specialises in international and constitutional law, Human Rights, IP and Media & Regulatory work. He has been appointed by the Foreign Secretary to the FCO Free Expression advisory board and the Lord Chancellor to be a Champion for the Community Legal Service. He is a previous Spear’s Award winner.