Tag Archive | "Lisbon treaty"

Parliament alone has the power to trigger Brexit

The High Court has ruled that Parliament must vote on whether the UK can start the process of leaving the EU. This means that the government cannot trigger Article 50 of the Lisbon Treaty on its own.

One of the most important constitutional court cases in generations, it has created a nightmare scenario for the government. The decision has huge implications, not just on the timing but also on the terms of Brexit. Read the full story

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Brexit in the High Court

Last Tuesday the High Court concluded its hearing of the legal challenge over Brexit. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster. Government lawyers argued before three judges that the Prime Minister is legally entitled to use the royal prerogative to commence Britain’s exit from the EU.

A number of campaigners have mounted legal challenges against the Prime Minister’s strategy for Brexit in what has been described as one of the most important constitutional cases in generations.

At stake is the question of whether the government is within its rights to begin the process of leaving the EU by triggering Article 50 of the Lisbon Treaty without the consent and authorisation of Parliament. It was established on both sides that the issue was justiciable, falling within the auspices of the courts to decide upon.

Lord Pannick QC represented the lead challenger, Gina Miller, in the claim. He argued that the inevitable consequence of triggering Article 50 is that statutory rights enjoyed by some UK and EU citizens will be taken away. That can only be done by Parliament, and not by the executive using the crown prerogative.

He contended that there was a direct causal link between the irrevocable triggering of Article 50 and the ultimate stripping away of statutory rights, such as that of UK citizens to stand and vote in European elections, to petition the European Court of Justice and to seek the European Commission’s intervention to uphold competition law.

The Government case, led by attorney general Jeremy Wright, argued that the mandate to trigger Article 50 is clear from the referendum. As Parliament did not take the opportunity to prevent a restriction on the use of royal prerogative for the triggering of Article 50, the executive has the power to trigger as it pleases. He said the “notification – once given – will not be withdrawn. It is our case that Parliament’s consent is not required.”

He told the court that the power to activate Article 50 was a “classic example of the proper and well established use of royal prerogative” with regard to treaty making and breaking.

Sky’s Faisal Islam wrote that “The concerning news for the Government is that the three High Court judges appeared far more sceptical about its case than many had expected. The Lord Chief Justice said twice that their argument ‘baffled’ him. It is entirely plausible that the Government will lose this case, which might come as a shock to Westminster.”

It depends on the three judges. The 582-page transcript of the High Court hearing is a formidable hurdle to a quick ruling. “We shall take time to consider the matter and will give our judgements as quickly as possible,” said Lord Chief Justice John Thomas, Britain’s most senior judge, who has been hearing the case with two other leading justices.

Whichever side loses will almost certainly appeal to the Supreme Court, the UK’s highest judicial body, which will give a final verdict in December.

It is not impossible that the Supreme Court could refer the case to the European Court of Justice. Now that would be ironic.

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And the list grows. The relentless procession of those who fought for the UK to leave the EU and have since fled the field of battle. Johnson, Farage, Gove, Leadsom, Duncan Smith, Cameron, just to name a few. As if horrified by what they have achieved they cannot face the task of implementation. But here they are, like crows on a telephone wire, demanding that others carry out their legacy. Ironic that they are already haranguing Theresa May, a Remainer, to stick to the letter of Brexit.

As John Crace writes in today’s ‘Guardian’, “May says Brexit means Brexit though not necessarily if the man by her side, Chris Grayling, were to become minister for Brexit. Grayling has yet to find a job he can’t do slowly and badly.”

If you are one of the millions who signed the on line petition seeking a rerun of the referendum, you will have received an email stating that “The Prime Minister and Government have been clear that this was a once in a generation vote and, as the Prime Minister has said, the decision must be respected. We must now prepare for the process to exit the EU and the Government is committed to ensuring the best possible outcome for the British people in the negotiations.” Even though the ‘outers’ campaign was based on misrepresentations of fact and promises that could not be delivered.

The email also refers to the European Referendum Act 2015, which is concerned mainly with who can vote, where, and (most importantly) who can claim expenses. The Act also makes clear, by default, that the referendum is consultative and not legally binding.

As a result, more than 1,000 barristers have signed a letter to the prime minister urging him (now her) to allow parliament to decide whether the UK should leave the European Union. The barristers argue that there must be a free vote in parliament before article 50 of the EU’s Lisbon treaty can be triggered.

According to the ‘Guardian’ the letter states: “The referendum did not set a threshold necessary to leave the EU, commonly adopted in polls of national importance, eg, 60% of those voting or 40% of the electorate. This is presumably because the result was only advisory…The parliamentary vote should take place with a greater understanding as to the economic consequences of Brexit, as businesses and investors in the UK start to react to the outcome of the referendum.”

The barristers call for the establishment of a royal commission or an equivalent independent body to receive evidence and report, within a short, fixed timescale, on the benefits, costs and risks of triggering article 50. The parliamentary vote would not take place until the commission has reported.

Philip Kolvin QC, who coordinated this action,is reported as saying that Parliament is sovereign and the guardian of our democracy, which is what Brexiters have been demanding. “MPs are elected to exercise their best judgment on the basis of objective evidence, to safeguard the interests of the country and their constituents for this and future generations,” he said. “At this time of profound constitutional, political and possibly social and economic crisis, we look to them to fulfil the responsibility placed upon them,”.

A legal challenge to David Cameron’s assertion that he or his successor as prime minister can begin the withdrawal procedure is due to be heard in the high court next week.

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