Top law firm launch legal challenge to stop Article 50 being invoked without an Act of Parliament

[EdieParfitt]

Heard about this on another MN thread. Here's the press release

Article 50 process on Brexit faces legal challenge to ensure parliamentary involvement

Legal steps have been taken to ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament. The case is being brought by leading law firm, Mishcon de Reya, on behalf of a group of clients. Following publication of articles on the subject this week Mishcon de Reya has retained Baron David Pannick QC and Tom Hickman to act as counsel in this action, along with Rhodri Thompson QC and Anneli Howard.

The Referendum held on 23 June was an exercise to obtain the views of UK citizens, the majority of whom expressed a desire to leave the EU. But the decision to trigger Article 50 of the Treaty of European Union, the legal process for withdrawal from the EU, rests with the representatives of the people under the UK Constitution.

The Government however, has suggested that it has sufficient legal authority. Mishcon de Reya has been in correspondence with the Government lawyers since 27 June 2016 on behalf of its clients to seek assurances that the Government will uphold the UK constitution and protect the sovereignty of Parliament in invoking Article 50.

If the correct constitutional process of parliamentary scrutiny and approval is not followed then the notice to withdraw from the EU would be unlawful, negatively impacting the withdrawal negotiations and our future political and economic relationships with the EU and its 27 Member States, and open to legal challenge. This legal action seeks to ensure that the Article 50 notification process is lawful.

Kasra Nouroozi, Partner, Mishcon de Reya said:

We must ensure that the Government follows the correct process to have legal certainty and protect the UK Constitution and the sovereignty of Parliament in these unprecedented circumstances. The result of the Referendum is not in doubt, but we need a process that follows UK law to enact it. The outcome of the Referendum itself is not legally binding and for the current or future Prime Minister to invoke Article 50 without the approval of Parliament is unlawful.

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.

Anyone wishing to support the action to ensure that the UK Constitution is upheld in this process should email [email protected].

If you have an enquiry please visit //www.mishcon.com/50.

To read more about this from the Financial Times, please click here. Please note this is a subscription based website.

[whydidhesaythat]

One thing I do know is that this is mdr not wasting a good crisis

[missmoon]

The case for: ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/

The case against: publiclawforeveryone.com/2016/06/30/brexit-on-why-as-a-matter-of-law-triggering-article-50-does-not-require-parliament-to-legislate/

[Chris1234567890]

Agree with tiggytape

Personally, it looks like theyre ensuring there cant be a legal challenge from Brussels. If you ensure from the outset, that the process is done under scrutiny, and indeed meets both UK and EU law, it will indeed stand undisputed. Just as it should. Good news for leave IMO

[Spinflight]

Retrospective legislation is not allowed, nor legislation that binds a successor parliament.

I suppose the referendum bill could be repealed, but I can't see that happening. I suspect Her Maj would dissolve parliament first.

[crossroads3]

www.bbc.co.uk/news/uk-politics-36698055 Blair interview

[Kummerspeck]

Some lawyers really do deserve the disdain in which they are held

[crossroads3]

But if the referendum bill states that there will be no voting on it, why are a handful of MPs saying that they will vote against Brexit?

www.newstatesman.com/politics/uk/2016/06/meet-mps-who-still-think-they-have-chance-defeating-brexit

[BellwetherBlether]

The EU are demanding we go and we are investigating our legal position so that they cannot prevent us leaving. Can this get any more farcical?

[Mistigri]

crossroads you need to go and read the two links in missmoon's post above.

It's not clear, legally and constitutionally, whether the govt can trigger article 50 or whether a vote in parliament is required.

[crossroads3]

I will misti

[Patientgriselda]

retrospective legislation is not allowed

May I correct this one? Retrospective legislation is allowed provided the intent is clear that it have retrospective effect. (I worked on some myself a couple of years ago.)

[MajesticWhine]

I agree with what Tony Blair said. Diplomacy is the way forward. I expect that Theresa May would take time and work out what brexit looks like. Parliament cannot simply overrule the referendum as things stand. But things might look very different after a period of talks and reflection.

[crossroads3]

Then I hope Andrea Leadsom doesn't win, with her talk of triggering Article 50 immediately . I know she is unlikely to win.

[Valanice1989]

I'm confused. I thought Parliament needed to vote to repeal the European Communities Act 1972 before Article 50 could be triggered?

[scarlets]

Terrible idea, and I say that as someone who' support Remain. Like many, I've no idea about the legalities of this. However, there will probably be civil unrest if the ref result is overturned because of a legal challenge by a solicitor representing a wealthy, self-serving consortium of elites. Then, UKIP will pick up support. And EU migrants won't exactly be made welcome in the Leave regions - they'd be at physical risk, scapegoated even more than they are currently. This law firm is stirring up serious trouble but I imagine that their staff lead pretty comfortable lives miles away from the areas where unhappy Brexit voters live, so why should they care. They just see a substantial payday and a chance to make history.

[EdieParfitt]

It seems perfectly sensible to me; clarification is needed and hopefully will be gained by this action.

Civil unrest? There's going to be plenty of that when UKIP/BNP realise that this referendum will not lead to a curb on immigration. Why should we be threatened by a bunch of thugs?

[MangoMoon]

If there is even the slightest indication (which it seems there absolutely is) that it has to be voted through by parliament, then that is what they must do, instead of wasting money challenging any legal action.

If this happens, then surely the individual MPs are duty bound to represent the will of their constituents, and to vote according to their wishes, not the MPs own.

From tiggytape's post earlier:

^There were 399 counting areas. 270 voted to leave.
The voting areas don't match exactly to constituencies but, as a rough proportion of areas nationally, 68% voted to leave.^

If that's the case, then the outcome of the referendum stands and the correct steps will have been taken from a legal standpoint.

Is that correct?

If, however, any MP votes against their constituency's majority view (as per the referendum) then that will blow the whole of our supposed democracy apart, surely?
That would bring about a whole heap of civil unrest.

[Alisvolatpropiis]

This is interesting. Presumably the client is a group of corporations who have instructed MRD because they seek some sort of certainty for themselves and their business interests.

[MangoMoon]

I can only imagine the outcome if it is voted down - it doesn't bear thinking about tbh.

I read the links from earlier, and found them tough going as I am not a lawyer!

It seems like in the 2nd link, whilst the PM can legally invoke article 50 with no parliamentary 'OK', it will be better to put it through parliament too - a belt & braces type approach.

Is that right?!

[MangoMoon]

Sorry, that was in reply to tiggy - and also should have said thanks for the other link too.

[crossroads3]

I'm confused. I thought Parliament needed to vote to repeal the European Communities Act 1972 before Article 50 could be triggered?

Yes it does.

www.theguardian.com/commentisfree/2016/jun/27/stop-brexit-mp-vote-referendum-members-parliament-act-europe?CMP=fb_gu

And I think Northern Ireland and Scotland at least, as well as some Welsh and English MPs will be voting against this.

[Mistigri]

If this happens, then surely the individual MPs are duty bound to represent the will of their constituents, and to vote according to their wishes, not the MPs own.

MPs do have a duty to represent their constituents, but we don't have a direct democracy - we have a representative democracy under which we entrust our representatives to make the decisions that they or their party believe best for the country. If an MP's job was to represent and implement the views of his or her constituents, we'd probably still have capital punishment and be driving without seat belts.

However, in this case, I do think MPs will mostly try to represent the views of their constituents. The issue will be determining what those views are. The problem is that while it's (broadly) clear what remain side want, it's not at all clear what leave voters want. A substantial minority, including my father - a former UKIP member from back in the pre-Farage, pre-BNP-lite days when it was a single issue party devoted to fighting membership of the eurozone - will be horrified at the prospect of losing single market access. I think it's fair to say that while there was a majority for leaving the EU, if you asked people to vote on leaving the single market, the balance would be different.

So the question for MPs may come down to - what are they voting for? If it comes to a vote, I do think that many would face a difficult decision if the future leader tried to invoke A50 with no plan in place.

[crossroads3]

Civil unrest? There's going to be plenty of that when UKIP/BNP realise that this referendum will not lead to a curb on immigration. Why should we be threatened by a bunch of thugs?

^ this.

For many reasons I think the referendum is a travesty. Bringing the whole thing to parliament for debate would legitimise the whole thing whichever way MPs voted. The referendum was advisory - so now MPs have been advised that 37% of the electorate want to leave some of those will have decided based on lies and dog whistling (though leaving may not bring about the reduction in immigration that some people voted for), and just under 35% want to remain. They can make their decision with these figures in mind but IMO they are hardly a huge basis for the massive and irreversible constitutional, economic and social change that is implied should go ahead without any thought.