A thousand lawyers send letter to Cameron over EU Referendum

[BrexitThunderbolt]

It starts:
TO THE PRIME MINISTER AND ALL MEMBERS OF PARLIAMENT

9 July 2016

Dear Prime Minister and Members of Parliament

Re: Brexit

We are all individual members of the Bars of England and Wales, Scotland and Northern Ireland. We are writing to propose a way forward which reconciles the legal, constitutional and political issues which arise following the Brexit referendum.

The result of the referendum must be acknowledged. Our legal opinion is that the referendum is advisory.

The European Referendum Act does not make it legally binding. We believe that in order to trigger Article 50, there must first be primary legislation. It is of the utmost importance that the legislative process is informed by an objective understanding as to the benefits, costs and risks of triggering Article 50.

link to the whole letter here

I am particularly pleased to see this included in their reasons for writing as they do:
There is evidence that the referendum result was influenced by misrepresentations of fact and promises that could not be delivered.

Since the result was only narrowly in favour of Brexit, it cannot be discounted that the misrepresentations and promises were a decisive or contributory factor in the result.

Yes a negotiated deal would definitely have to be agreed by parliament but any actual deals won't actually be arrived at until after Article 50 has happened.
Parliament won't be agreeing a deal before then as there can't be one according to the EU.

They have to agree to the repeal of the ECA 1972. Which is needed in order to trigger A50. David Cameron didn't figure on losing - and I expect it's why he didn't trigger it - because the legal case for A50 isn't clear.

They have a duty, as our elected parliament, to ensure it's clear.

They have a duty, as our elected parliament, to ensure it's clear.

What does that even mean? ^ They had an election. It was clear. They are entitled to Article 50 - that's clear, it's law. Spending time and money for lawyers to air their politics is definitely not a duty.

They didn't have an election - they had a referendum. If things are unclear because laywers and MPs disagree on the legal way forward, they have a duty as our elected parliament to make sure the legal case is clear. A vote in parliament does that - so what is your case against that?

Apologies - referendum not election.

If things are unclear ... it is because lawyers want to muddy them.

Well, it's not so much muddying waters, as rightly seeking legal and parliamentary clarification. Read the letter - what they're asking is absolute clarification legally. This is not unreasonable, as we are in uncharted waters. To trigger A50, we have to repeal the ECA - better to have it all legally tied up properly than not, surely? If this Brexit thing is a real thing, then it has to be done properly - not rushed through in a referendum-based panic.

'Clarification' -

There was an Act, there was a vote, there will be Brexiting.

This is only hard for lawyers who want a different outcome.

Under, you certainly wouldn't want to repeal the European Community Act before enacting Article 50. The ECA is to do with domestic statute and Article 50 is a royal prerogative of the UK Government and does not need any legislation in order to enact it.. The repealing of sections 2(1) and 2(2) of ECA 1972 would leave us without legislation to regulate many of the directives currently employed in all spheres of business and other life in the UK. Until we know exactly what kind of relationship we will have with the EU in the future and have successfully negotiated a deal then we can't possibly know what exactly we will do with the ECA.

You're right, I wouldn't want to repeal the ECA - not at all. But can we properly enact article 50 without doing so? It will have to be repealed or amended if we are to leave the EU. My argument is that we rightly need a parliamentary vote prior to enacting A50 at all, in order to follow our own constitutional conventions.

In the case of legal doubt, surely we ensure this is legally watertight? THis is a massive thing we are about to do - the biggest constitutional change in living memory. We need to do it right.

But how is that going to work exactly? Parliament has a vote and votes against enacting Article 50 so we don't leave the EU! That's not what our constitution is about it is about making the will of the people sovereign. The will of the people was enacted in the referendum and the majority wanted to leave.
Article 50 is a prerogative, it is a diplomatic directive if you like. Parliament deals with domestic statute not prerogatives.

That's what you're afraid of, be honest. Nothing to do with the law - you're afraid that parliament will vote on favour of the country not leaving. Which would be a good thing. We live in a parliamentary democracy - this is how it works, parliament decides.

Of course, that's not to say it would go that way - an awful lot of MPs say they will respect the result of the referendum. But y'all seem awful afraid of a parliamentary vote. It should be par for the course.

I'm not afraid of it at all. I'm simply saying that there is no way any government in their right mind would decide to have a vote in parliament that could over rule the vote of the people. They simply wouldn't do it. It would be political suicide.

Well we'll see. They may have to - don't want another Chilcot disaster 10 years down the line, telling us wha we already know - ie, that the brexit was not strictly legal and that constitutionally we should have had a parliamentary vote.

Well as was said up thread there is a court case going to be heard so it will be interesting to see if the judge agrees with you or not Under.
I really can't see where you get the idea that the referendum wasn't strictly legal and that it is somehow constitutionally correct to have a parliamentary vote to potentially overrule it. How can that be move right?

We live in a parliamentary democracy - this is how it works, parliament decides.

And they decided to have a referendum when they passed the Referendum 2015 Act.

As pointed out earlier, that was the time to raise issues about the referendum. 1054 lawyers thought that they would win, though.

In the case of legal doubt, surely we ensure this is legally watertight?
This is disingenuous, as you will know if you are a lawyer. We can generally fight both sides of most situations - 'watertight' is not justification for riding over 23 June 2015.

And in terms of regret, I think some of those lawyers would probably not sign that letter if asked today. The political reality of Brexit is sinking in, in whatever form it will happen, and letters like this are just screams in the wind.

Can you all stop forcing me to agree with add to basket?
all a vote in Parliament would achieve is more drama for24 hours
Hope for remaining is a longer game not played primarily in the courtroom

"The case for Parliament to use any legal signing off process to overturn a decision that it said it would abide by (after months of campaigning and the country dividing around that decision) for the good of the people is far less convincing."

Parliament could have said that but chose not to. See HoC Briefing Paper 07212 of June 2015:
5. Types of referendum
This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.
In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented.

If you mean that individual members gave that indication you might be right (though my MP said nothing on the subject). But it is not correct to assert that Parliament did.

As I have said before the government might not have a legal duty to enact the will of the people and abide by the Brexit vote but they have a political and moral duty. There is no great 'weapons of mass destruction' conspiracy here. Both sides egged the pudding but the result stands.
There will be Brexit. Brexit means Brexit. I really don't see what anyone hopes to gain by nit picking.

Huppo - you signed it, did you see the list? Are you able to link?

Can't find Philip Kolvin QC on Twitter, etc.

Surely you can find him via his office.does it matter that much?

David Cameron made a speech the night before the referendum and told us all there was no going back.it simply could not have been clearer.

Honestly,I think both letter writers and letter complainers are in danger of giving lawyers a bad name.

Of course there will be going back if leaving will bankrupt the country. No one. Knows what deal can be made and in what time frame. As this emerges it will become clear whether this will be a blip or a catastrophe.

cornerstonebarristers.com/barrister/philip-kolvin/

He's a planning lawyer....

It's got his email address on. Write from your mumsnet account and ask him to post the letter on this thread :)