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Is Brexit unlawful unless Parliament approves? (Trigger warning)

You might think so from reports from the usual quarters, including the Grauniad in a piece, which even by the low standards of legal waffle, is utterly devoid of anything approaching a reasoned legal argument. But from their point of view perhaps, job done.

However, some heavyweight lawyers have weighed in with an opinion piece providing some arguments that Brexit would only be lawful if Parliament approved it. And you can imagine their concern that the clearly expressed will of the electorate might be ignored, why the BBC has even picked up this article, letting it be more widely known.

‘…we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.’

So that was all a waste of time then, and Mr Cameron has resigned for no good reason (from his pov), I hear no one say.

Let’s look at this a bit, (btw my answer is ‘No’).

Article 50 – The relevant provisions of Article 50 read as follows:

1 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2 A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Article 50 is part of the Lisbon Treaty, and it is enshrined in law by an Act of Parliament (this Treaty was the one that Mr Cameron gave us that ‘cast-iron’ guarantee of a referendum on, until is was ratified, when it was ‘too late’ to have a referendum.)

Looking at 1, this seems to me to leave the decision to withdraw to the member state, and for it not to be a matter for the EU, and nothing more. If a member state decides to leave, it need only follow its own requirements, i.e. the EU does not presume to over-ride any such mechanism, fair enough, and the decision itself must be lawful, lest a would-be dictator seeks to rush out of the EU on the way to mimicking Belarus.

2 sets out the mechanism for the departing State to notify the European Council. Nothing fancy there, a verbal statement could do it, but a handwritten letter would be polite. “Dear Donald, We are ducking out of the European Union in accordance with the terms of Article 50, this letter is our formal notification thereof, Chauzinho, signed ….”. And then a negotiation starts.

Looking at 3, the Treaties shall cease to apply to the State in question etc. from the date of entry into force of the withdrawal agreement (whenever that might be) or, failing that, 2 years after the notification, unless the European Council unanimously* decides to extend this period (in agreement with the departing state)

(*Pay attention folks, 50 (3) crops up below.)

So if nothing is agreed to extend time, or if we don’t leave earlier, exit is automatic after 2 years. Perhaps the Chilcott committee will find a new task for the next decade or so, negotiating Brexit?

The problem, it seems, is that the lawyers think that the Royal Prerogative is constrained by law, in that the Sovereign (on the advice of her Ministers) can do no wrong, but also cannot do anything that is unlawful such as exercising her Prerogative when Parliament has provided for it to be exercised in a particular way or with prior Parliamentary approval, in which case it is no Prerogative at all, of course.

All very well, but the exercising of Article 50 is simply doing what ‘it says on the tin’, the right to withdraw is inherent in the Treaty, so exercising a right provided for in the Treaty is not (well it seems fairly obvious to me anyway) a breach of the Treaty or of EU law. One might ask, if Article 50 does not allow for withdrawal, what on Earth does it provide for?

But of course, it goes much deeper than that, the exercise of the Prerogative is constrained by Parliament and the law. The first line of attack is to argue that Parliament has to approve a decision to leave the EU.

Is this found in 50 (1) “…in accordance with its own constitutional requirements…” Of course, the UK has no written constitution (moan the Lefties), but the referendum was held by authority of an Act of Parliament, and it was only ever ‘advisory’, i.e. it was legally a pointless exercise, as the outcome mandated nothing, whereas a 2011 Referendum did mandate a change in the law in the event of approval to changes in the voting system, by delegated legislation within the Act. So the Act that provided for this Referendum could have provided for a mechanism for its implementation by its own provisions mandating the Prime Minister to trigger article 50 in the event of ‘Leave’ prevailing, or by requiring another Act (which is necessarily subject to Parliament’s will) to trigger Article 50. The Prime Minister may ignore this Referendum outcome completely, of that there is no legal doubt.

But then again, Parliament has constrained the power of the executive (i.e. the Crown as advised) in relation to treaties. Step forward The European Union Act 2011. This Act is a sort of ‘entrenching’ Act, which sets out various obstacles to Treaty modifications without a referendum in the UK, see section 4.
4 Cases where treaty or Article 48(6) decision attracts a referendum
(1) Subject to subsection (4), a treaty or an Article 48(6) decision falls within this section if it involves one or more of the following—
(a) the extension of the objectives of the EU as set out in Article 3 of TEU;
(b) the conferring on the EU of a new exclusive competence;
(c) the extension of an exclusive competence of the EU;
(d) the conferring on the EU of a new competence shared with the member States;
(e) the extension of any competence of the EU that is shared with the member States;
(f) the extension of the competence of the EU in relation to—
(i) the co-ordination of economic and employment policies, or
(ii) common foreign and security policy;
(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;
(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;
(i) the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;
(j) the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;
(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord;
(l) any amendment of Article 31(2) of TEU (decisions relating to common foreign and security policy to which qualified majority voting applies) that removes or amends the provision enabling a member of the Council to oppose the adoption of a decision to be taken by qualified majority voting;
(m) any amendment of any of the provisions specified in subsection (3) that removes or amends the provision enabling a member of the Council, in relation to a draft legislative act, to ensure the suspension of the ordinary legislative procedure.

Zzzzz…. But nowhere in this Act has Parliament put any brake on the exercise of the notification to leave the EU under Article 50! That right is left untouched, yet it could have been constrained. Furthermore, this Act requires a referendum on certain decisions by Ministers (i.e. the Crown) by Section 6.

6 Decisions requiring approval by Act and by referendum
(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless
(a) the draft decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(2) Where the European Council has recommended to the member States the adoption of a decision under Article 42(2) of TEU in relation to a common EU defence, a Minister of the Crown may not notify the European Council that the decision is adopted by the United Kingdom unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(3) A Minister of the Crown may not give a notification under Article 4 of Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU which relates to participation by the United Kingdom in a European Public Prosecutor’s Office or an extension of the powers of that Office unless—
(a) the notification has been approved by Act of Parliament, and
(b) the referendum condition is met.
(4) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (1) as references to a draft decision and for the purposes of subsection (3) as references to a notification….

Try an espresso to stay with me, but furthermore, the Schedule to this Act sets out ‘Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum’.

And here we find, at the bottom, Article 50 (3):
Article 7(2) (determination by European Council of existence of serious and persistent breach by member State of values referred to in Article 2).
Article 14(2) (composition of European Parliament).
Article 15(4) (decisions of European Council require consensus).
Article 17(5) (number of, and system for appointing, Commissioners).
Article 19(2) (appointment of Judges and Advocates-General of European Court of Justice).
Article 22(1) (identification of strategic interests and objectives of the EU).
Chapter 2 of Title V (specific provisions on the common foreign and security policy).
Article 48(3), (4), (6) and (7) (treaty revision procedures).
Article 49 (application for EU membership).
Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU).

So Parliament has set limits on what Ministers of the Crown may do in respect of the Lisbon Treaty, and has said nothing at all about the exercise of the right to withdraw requiring Parliamentary approval, it has left this area alone. Yet, if the UK were to partake in a decision to change the requirement for unanimity from the European Council when extending time during which the withdrawal mechanism applies to a departing state, this would require a referendum.

Of course, triggering Article 50 and Brexit will still leave Section 2 (2) of the European Communities Act 1972 intact and in force, maintaining the supremacy of EU law in the UK after Brexit, because nothing in Article 50 dis-applying the Treaties would necessarily repeal that section of UK law. But that would leave a post-Brexit Parliament in the odd position of being bound by a predecessor Parliament’s decision to make EU law supreme and limit its power to amend EU law. Would anyone suggest that such a situation would last?

The final arguments against Brexit may well be that to leave the EU is a breach of someone’s Human Rights, and is therefore void or should be stopped, or, alternatively that the decision to leave is a breach of EU law and therefore void.

But of course, by the very nature of the EU, the UK’s courts, even if they were minded to grant an injunction or inderdict against notification of Brexit (making it void) cannot constrain the EU or stop it from doing what it wishes, such as showing us the door.

UPDATE 19072016: Court challenge to be heard in the High Court of England and Wales in October 2016.

Replay!

3.9 million sign petition to replay England vs Iceland

It makes just as much sense as this:

Petition for EU referendum re-run hits 3.7 million as David Lammy MP calls for parliament to block Brexit

Should Britain adopt the EEA option?

My friend Preston pointed me at what the Adam Smith Institute calls the “EEA Option”, which would apparently provide many of the free trade and movement benefits of EU membership without being in the EU or beholden to most of its rules.

Certainly worth a read as people start contemplating what one would want the negotiated exit from the EU to look like.

Samizdata quote of the day

And they worry the pound might crash? Pay attention to the euro.

Zero Hedge

The risks we run

In all the talk and words about the UK Brexit vote last Thursday, a regular line is that the Leave side has been “misled”, and doesn’t know what it is doing, and it is going to have buyer’s remorse, etc, etc. Who knows, maybe that criticism is apt. However, it is a bit rich for those who, for example, favoured the creation of the European single currency, as many pro-Remainers did (they might hope we’d forget) to claim that those who wish to leave an entity with pretensions to be a superstate are not thinking of the risks. That is a bit rich.

The launch of the single currency is arguably one of the riskiest, most hubristic transnational projects of recent decades, and I still see very little sign of contrition for rolling out a new form of fiat money without creating the economic and political architecture to deal with life inside a one-size-fits-all interest rate.

One reason why remaining EU states are scared of what has happened is the fear that a eurozone member state, envious of how the UK has just voted, might have similar ideas.

An outsider’s view of Brexit

I’m not British. However, I’m a reasonably frequent visitor to the United Kingdom.

I spent last Thursday night having dinner in New York City with a bunch of Brits from the home office of the London based consulting company I’m affiliated with. I’m not an employee, but I’m a close-enough friend of the company’s management that there that there’s much more of a spirit of “we” than “they” when I talk to them.

The whole firm was, of course, heavily on the “remain” side since they have contracts all over the continent and The City is a huge source of revenue. The reason The City itself has grown to be so huge is because it is the finance capital of Europe, and it vies with New York for finance capital of the world as a result.

That, sadly, may be over soon.

The firm’s business also relied (I should say relies, it isn’t gone, at least not yet) on being able to do things like taking a contract in Frankfurt and sending people there from London without more of a thought than an American firm would have about taking a contract in Stamford, Connecticut even though they’re based in White Plains, New York – another state entirely.

We in the U.S. are of course used to such things – we don’t give thought to the idea of someone from New York selling something to someone in Los Angeles or flying there to do work for a month. No one needs to give you permission to do this, you just go and do it. We’re one big market, and that has helped our economy tremendously over the centuries. Europe had finally become like that, a place where you could do business all over without permission, and with it, a whole new class of companies like the one I work with rose up, companies that didn’t trade with Europe but in Europe.

→ Continue reading: An outsider’s view of Brexit

Why the Samizdata System Administrator voted ‘Remain’

Hi! I’m the guy who hosts, and looks after, Samizdata. I’m a software engineer.

Several years ago I did the port from old Samizdata for Perry, largely as a favour, but also because I believe strongly in free speech and that it should be heard. I’ve looked after it since that time.

So I’m basically a free speech activist rather than any stripe of “libertarian”.

And I don’t generally post, but Perry invited me to do so years ago, and I thought this was a worthwhile opportunity.

So why did I vote ‘Remain’?

→ Continue reading: Why the Samizdata System Administrator voted ‘Remain’

The Lib Dems have less respect for democracy than General Pinochet

The Liberal Democrat party, with its host of 6 MPs (much reduced in 2015) have pledged to ignore the Brexit referendum result and to campaign for the UK to remain in the EU.

“Nigel Farage’s vision for Britain has won this vote, but it is not a vision I accept”, declared Lib Dem leader Tim Farron yesterday. “Even though the vote was close, the majority of British people want us to leave. But we refuse to give up on our beliefs”, he said.

Mr Farron, the relatively obscure leader of the party of heavyweights such as Cyril Smith, went on:

Mr. Farron argued that his party’s proposition was justifiable in a democratic society as older people’s votes were somehow less valid and because a vote against the EU was really a vote against Westminster.

“This was not a vote on the European Union alone”, he said, but a “howl of anger” against politics.

So, once the votes are counted, and if that ‘fails’, they are then ‘interpreted’ and in line with socialist logic, they don’t mean what a plain reading might fairly be taken to show that they mean. But is he not also saying that the vote was against him, as a member of the Westminster Parliament?

I would like to contrast this attitude with that of General Pinochet, well-known ‘strongman’ of Chilean politics from 1973 to 1990, who held a referendum on his junta (well, him) continuing to rule Chile in 1988, and who respected the outcome rejecting his continued rule, with a little prodding perhaps from General Matthei, the Air Force member of the junta (and friend of the UK in the Falklands War), who called for the result to be respected.

I suppose what we are seeing is a political auto-endoscopy by the Left, each trying to get further up their own arses than the other, with Nicola Sturgeon, Scotland’s First Minister indicating that the Scottish Parliament may have a veto on Brexit, a surprising interpretation of constitutional law from someone who is a solicitor.

I am confident that the bulk of people will see through all this, and see the Left, in all their shades, for the totalitarians that they are.

Free space

1GBfree

(I do not know who made this image. If you are the creator, let me know and I will be happy to give credit.)

Now is the winter of our discontent, or perhaps just two very English words

Senlac Hill, the figurative venue for the re-match.

And as before, the huscarls and fyrd shouted the battle cry: “Out! Out! Out!”

The enemy were not my Norman ancestors this time, but rather David Cameron in the role of William the Bastard, with his knights arranged around him with names like Jean-Claude Juncker, J.P. Morgan, Barack Obama, Tony Blair, and oh so many other members of the global establishment who disdainfully ordained that the order of things must not be upset, and snouts must be left undisturbed in the troughs to which they have become accustomed.

But this time… oh this time… it was not the embodiment of England who took an arrow in the eye but rather Dave the Bastard. This time just enough of the fyrd refused to take the bait, declining to rush forward off the hill leaving the huscarls exposed. This time they stood fast behind a forest of spears and a wall of shields, against which the forces of Dave the Bastard charged and died. We shall not be moved!

And in this glorious re-match, who has been cast in the role of King Harold Godwinson? It is hard to say, for he is wearing a helmet, but I have a sneaking suspicion when he takes it off, he will have very blonde tousled hair.

Britain has just angrily shrieked two words and they are: FUCK YOU!

I am a very happy man today.

One in the eye mate

Dave Rex Interfectus Est?

UPDATE: YES!!!! Dave Rex Interfectus Est!

That moon-faced toad David Cameron did indeed take the arrow in the eye he so richly deserved and has resigned! W00t! Dancing Banana

Well, well, well

It is not over, but things are looking good for Leave.

Update: Some internet sites where you can watch what is turning out to be a political earthquake.

The Guardian‘s live blog. Hats off to them, this is the obvious first place to go.

EU referendum rolling forecasts by Chris Hanretty, Reader in Politics University of East Anglia

Political Betting.com. Sample headline “The results so far have developed not necessarily to Remain’s advantage”. A student of history, then.

*

First thoughts:

– THE UNITED KINGDOM WILL LEAVE THE EUROPEAN UNION.

The working class did it. The issue was immigration. It wouldn’t have been my choice for main issue, but I am not ashamed to have been in a broad alliance. I’ll gladly bear the next election being won by a party I don’t like in exchange for elections mattering again.

– Talking of which, who will win the next election? Which parties will fight it? When will it be? No idea.

Shy Leavers. And I hesitate to say this, but the atmosphere of blame following the murder of Jo Cox will have been perceived by many as moral blackmail.

The EU is holed beneath the waterline. People worldwide have seen that impossible things can happen.

President Trump? His visit to these shores is spookily well timed.

Prime Minister Cameron? – 2010-2016

Don’t assume that the SNP actually wants another Scottish independence referendum. Right now a second indyref would have the same result as the first.

Well, I dunno

The pro-Remain Daily Mirror has an odd choice for its front page:

Mirror front page referendum

Update: Mr Ed has suggested the following caption:

“THIS IS WHERE THE MONEY GOES”

I know what the Mirror is trying to say, but what with “REMAIN” being in capitals and larger type, the instant impression that it gives to me is that REMAIN is a deep dark hole sucking the hapless voter inwards to destruction. A valiant effort by the Leave mole in the Mirror graphics department, but judging by the final polls, it may not be enough. But don’t let the polls cause you to give up and not bother voting: the pattern has been that phone polls tended towards Remain and online polls towards Leave. I attribute this to “Shy Leavers” being put off from disclosing their true intentions to a possibly disapproving human being, particularly since the murder of Jo Cox. I could, of course, be wrong in this supposition. But it is worth a go.

My final Referendum thought? It’s one you could share with undecided left-wingers. A Leave win would increase the chance of Labour winning the next election, an outcome I do not want. But better a thousand times a party with the wrong policies in power for a few years in a system where we retain the power to throw them out next time than being sucked past the event horizon of the European Union, where all votes are votes for ever closer union.