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Monday, 4 July 2016

Brexit and Parliament - will it ever happen?

My last blog post looked at the impact of Brexit on proposed changes to personal injury claims. 

Things have, as we know, moved on again as Justice Minister Michael Gove has controversially thrown his hat into the ring in the conservative Leadership election. It has often been said that a week is a long time in politics. At the moment, half an hour and the world has changed again.

As we have all begun to recover from the shock of the exit vote, one thing has started to be discussed among lawyers - how will exit from the EU actually be achieved?

At first, it all seemed quite straightforward.  As and when the Prime Minister, whoever that might be, is ready then he or she will simply write an Article 50 letter to say we now want to leave and then two years later it is done. Easy. Or possibly not.

I first came across the likely battleground from an article by Geoffrey Robertson QC a leading constitutional lawyer. He advised that the referendum had no legal status and was merely ‘advisory’. He said that we would need a new Act of Parliament to repeal the European Communities Act 1972 which took us into the EU in the first place. That would require a vote in parliament. If MPs do not pass such an Act then Brexit cannot happen. He made the point that an MP in Scotland or London could say that they had a huge mandate to oppose such a move.

This appeared to be acknowledged by Cabinet member Theresa Villiers who was a leading supporter of Leave. In rejecting a suggestion from the SNP that they might veto any exit moves she said –

"But ultimately it is parliament's decision whether we repeal the 1972 European Communities Act or whether we don't."

Others argue that legislation would not be necessary; saying that the 1972 Act gives ministers the right exercise the Article 50 mechanism and so nothing more is needed.

The country is so divided on the issue that is seems inevitable that the Supreme Court will be called upon to decide the point. In fact the battle seems to have begun. Today we hear that top London firm Mishcon de Reya has already started legal action –

A spokesman has said –

“We must make sure this is done properly for the benefit of all UK citizens. Article 50 simply cannot be invoked without a full debate and vote in Parliament. Everyone in Britain needs the government to apply the correct constitutional process and allow Parliament to fulfil its democratic duty which is to take into account the results of the Referendum along with other factors and make the ultimate decision.”

The political impact of Brexit has seen led to one of the most dramatic political weeks that some of us can remember. It is clear that we are also going to see some landmark legal decisions as the dispute runs and runs. I would hesitate to predict the outcome but if Robertson and others are right then Brexit might never happen.

It is certainly going to be a busy time for public lawyers.

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