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.

It's not the 37% you need to worry about as a remainer, it is the fact that about 400 of the seats in England and Wales probably voted to leave, about 75%.

Hence whilst there are many MPs who actively support the EU I suspect they'll rather quickly change their spots with an eye to being re-elected in the future.

If you think our MPs are going to take a principled stand against..erm.. democracy then you might well be disappointed.

The wind has changed, and thus so will the politicians.

There's not going to be civil unrest. Politicians know how to do this stuff - delay, compromise, negotiate. People have short memories, and the groups most likely to riot (young people living in big cities) mostly voted remain. The booted and tooled up "hard right" is a danger, but their numbers are small.

Incidentally, this is what's behind the social media narrative about Leadsom - Arron Banks and his spinning team know that she is the only chance of a rapid exit. According to civil servants who worked under her during her brief time as a minister, she's "monomaniacal" and obsessed with the EU. But she is single-minded enough to shoot first and ask questions later.

a legal challenge by a solicitor representing a wealthy, self-serving consortium of elites

Democracy has sunk low in this country if you think this is a good thing

It was always obvious that there was one group with a cast iron guarantee that they would benefit from Brexit: lawyers (although most appear to have been against it, nevertheless).

I'm amazed that people don't think that it's beneficial to determine what is the legally and constitutuonally valid means of triggering article 50. The Lisbon treaty says that it must be in accord with the country's constitution; presumably any article 50 notification that did not meet this criteria would be invald.

The threat of civil unrest is Project Fear Mark 2.

We need to lobby MPs to make sure they make the right decision for now and for the next generation.

The Sun apparently highlights just 15 government MPs who are pro remain and sitting in vulnerable seats. I thought the number would be higher so I take a little bit of heart from this.

*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.*

According to the link posted at 22:55 (the 'public law for everyone' link) that is not the case at all.

People have short memories, and the groups most likely to riot (young people living in big cities) mostly voted remain.

The usually silent majority have absolutely been known to riot in the past.
The peasants revolt?
American war of independence?
American civil war?
Numerous uprisings during the 'Arab Spring'
And so on...

According to the link posted at 22:55 (the 'public law for everyone' link) that is not the case at all.

There is some genuine disagreement about this among people who are qualified to have an opinion. Hard to even have a view about who's right without a background in constitutional law.

As for civil unrest - really? When did the British people last rise up in revolt? Who is going to riot, and where? The keyboard warriers on twitter? Maybe they could get anonymous involved ;)

"Parliament effectively control the prerogative powers of government. The government can send a letter triggering Article 50 without asking Parliament. Like all such deeds Parliament can review or vote down any action of the government. If the government uses powers in ways Parliament does not like Parliament can pass a vote of no confidence. We do not need lawyers telling us how to legislate or control government."

On John Redwood's website...

Seems clear enough to me.

And John Redwood is qualified to be the final arbiter how, exactly?

Maybe they could get anonymous involved ;)

Maybe they will?

The number one threat to this country in the last SDSR report was cyber terrorism & crime.

Sorry, my mistake, it was the 2nd biggest threat after 'ordinary' terrorism.

John redwood? Hahahaha. Sorry. I just had to do that. How have we reached a position in which the creepiest voice of the Tory hard-right is now being advocated as mainstream opinion?

John Redwood makes me shudder.
He's like a weird bird-man.

As much as I would dearly love to agree with some (only some!) things that he says, I just couldn't physically bring myself to, without getting a bit of reflux...

Legal challenges were inevitable. With an unwritten constitution and Article 50 saying that it should be triggered in accordance with a member state's constitutional requirements there was always going to be a huge question over what exactly is required. This will end up in the Supreme Court.

Nigel Farage would be thrilled if the referendum result was overturned, all those new UKIP voters and a chance to be on the telly posturing and ranting again.

Since the UK doesn't have a written constitution, the way to decide things like this is by putting them in front of a judge, who then makes a decision based on previous case law and, er, stuff.

So the whole thing does need to go in front of a court, really. IMO.

Judging by causes Anonymous have got behind in the past, I don't think they'd be massively supportive of this one.

Other hacker groups are available.

Other hacker groups are available.

Lol

John Redwood is talking out of his arse. I'd guess the reason that MdR have been retained is because there is genuine dispute about the extent to which the prerogative power can be used, and the last thing anyone wants is to trigger art 50 under the prerogative, find out that it's unconstitutional, and give the EU the opportunity to kick us out under art 7 instead - effectively telling the world that we're a banana republic (well, a banana monarchy, but same difference in terms of reputation). If we're going to do this thing, let's do it properly ffs. And those pp wittering on about this being a pointless challenge by a ruling elite - seriously, you think that the rule of law is a bad thing?

There was a letter to The Times on Saturday from David Wolfson QC, which said the following (retyped as I have a paper copy):
"...the 1972 act incorporates EU law into domestic law, and does so by expressly providing in Section 2 that all "rights, powers... from time to time created or arising by or under the treaties" are part of UK law. The definition of "treaties" in Section 1 includes The Treaty on European Union, which contains Article 50.
Accordingly, not only is the right to notify withdrawal from the EU under Article 50 not inconsistent with the 1972 act, but it is brought into UK law by the 1972 act.
There may be good political reasons for seeking parliamentary approval of a decision to give notification under Article 50, but it is not legally required"

I am not a lawyer and know nothing but the writer of the letter is a top QC

The fact that a QC says something does not make it infallible. If that were the case, we would have no need for an appeal system.

I realise that Judy. I was just posting it as a different opinion because I thought it was interesting to see there are two sides of the argument even if we are not lawyers ourselves.

I imagine that their staff lead pretty comfortable lives miles away from the areas where unhappy Brexit voters live, so why should they care.
Brexit voters live everywhere, including the Home Counties. HTH.

As for civil unrest - really?

I think there is more likely to be civil unrest if A50 IS invoked, after all Scotland and NI voted very strongly against this. I would also remind the 'it'll never happen here' lot that we have blood on the streets in this country over football. I wish this referendum had never happened, the whole situation is a complete dogs dinner. I think both sides thought Remain would win, so Leave could promise the world, thinking they'd never have to deliver and Remain could say society would collapse and civil war start thinking they wouldn't be tested.

Just as I feel it can't get any weirder it does. Laughing my head off. I can imagine lawyers are going to be one more group the Leavers are going to absolutely hate now.