This week’s developments and legal opinions

Further to our earlier post, Brexit Basics, recent developments and updates are listed below. Readers will be aware of an e-petition initiated by a Brexit supporter in advance of the Referendum, EU Referendum Rules triggering a 2nd EU Referendum. It is most unlikely that this will lead to a retrospective change in the associated legislation, but at over 4 million signatures it is likely to be a factor in the political arena. It was referred to in Early Day Motion 243 which “calls on the Government to ensure that there will be a referendum allowing UK citizens to agree on the terms of the UK-EU exit package and associated constitutional changes or on the option to remain; and further believes that this referendum should be called before Article 50 is triggered”. Although tabled on 27 June, at the time of writing it had attracted only 5 signatures.

An item of news breaking late on Sunday 3rd July was the announcement by Mishcon de Reya that “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 process

• Kenneth Armstrong: Push Me, Pull You: Who’s Hand on the Article 50 Trigger?

• T.T. Arvind, Richard Kirkham, and Lindsay Stirton, UK Constitutional Law Association: Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary.

• Civil Litigation Brief: Brexit, the legal consequences, useful links A Blog about Civil Procedure, Costs, Limitation, Sanctions & Evidence by Gordon Exall, Barrister, Zenith Chambers Leeds & Hardwicke Building London.

• Richard Ekins, UK Constitutional Law Association: The Legitimacy of the Brexit Referendum.

• Mark Elliott, Public Law for Everyone: Brexit: On why, as a matter of law, triggering Article 50 does not require Parliament to legislate. A comparison of three possibilities regarding who gets to make the Article 50 notification, thereby triggering the withdrawal process: (1) The Prime Minister, by exercising prerogative power; (2) Parliament, by enacting primary legislation; (3) The Government collectively, by making an Order in Council under powers conferred by the European Communities Act 1972.

• Carl Gardner, Head of Legal: Article 50, and UK constitutional law.

• David Allen Green, Jack of Kent: Article 50: decoding Donald Tusk’s careful remarks “So: Prime Minister David Cameron avoided blurting out any notification under Article 50 at yesterday’s European Council meeting. This daft attempt yesterday by the European Parliament to bounce the UK into making such a notification failed”.

• Adam Tucker: Triggering Brexit: A Decision for the Government, but under Parliamentary Scrutiny.

• Jure Vidmar & Craig Eggett: EJIL: Talk!: Brexit: Is everything going to change in law, so that very little would change in fact? The authors, from Maastricht University, discuss the possibility of “three parallel Brexits”.

• Adam Wagner, UKRHB: Would a second EU referendum be undemocratic?

• Adam Wagner, RightsInfo: Five Lessons We Urgently Need To Learn From The Remain Campaign’s Failure: suggests, in short, that the electorate is no longer interested in being confused by the facts.

Conservative Party leadership timetable [from BBC Twitter]

The Conservative leadership elections are of importance with regard to the Article 50 notification and subsequent discussions with the EU: i] in determining the candidates’ views; ii] in delaying the earliest point at which such a notification might be given.

• Thursday 30 June: Nominations closed at 12pm: candidates are: Michael Gove, Theresa May, Stephen Crabb, Liam Fox and Andrea Leadsom.

• Monday 4 July: Hustings for MPs

• Tuesday 5 July: Voting open for MPs from 11am to 6pm. The first ballot is then counted and verified and the result announced by the returning officer immediately. The candidate with least votes drops out and the others decide if they’re still running.

• Thursday 7 July: Second ballot takes place. Voting is open for MPs from 9am – 4pm. Result announced afterwards.

This process continues on Tuesdays and Thursdays until they are down to two candidates. The final two are then put to the membership of the party.

• 9 September: New leader announced, unless, of course, someone drops out before that.

Brexit tImetable

• If Article 50 not activated until 2017, then th UK remains a full member of the EU until 2019, during which period there will be:
  • the French Presidential Election, April-May 2017;
  • the German Federal Elections, August-October, 2018.

• next scheduled UK General Election, Thursday 7 May 2020, under the Fixed-term Parliaments Act 2011. See also House of Commons Library: Fixed-term Parliaments Act 2011, Commons Briefing paper SN06111, 24 June 24, 2016.

The Scottish dimension

• Glenn Campbell, BBC Scotland: UK, EU – or both? Scotland’s options after Brexit.

• Jo Murkens, Constitutional Law Association: Brexit: The Devolution Dimension.

• Law Society of Scotland: Q and A following UK vote to leave European Union: on such knotty issues as, “I am qualified in another EU member state but I practise here using my home title under the Establishment Directive (98/5). Will I be able to stay here?”

UK Parliament, European Parliament

• No 10: PM Commons statement on the result of the EU referendum: 27 June 2016.

• No 10: PM Commons statement on the European Council: 29 June 2016.

• Foreign Affairs Committee: Implications of the EU referendum for the UK’s international role. The Foreign Affairs Committee held a one-off evidence session on the implications of the vote to leave the EU for the UK’s global role and for the Foreign and Commonwealth Office.

• Council of the European Union, Press Release: Remarks by President Donald Tusk after the European Council meeting on 28 June 2016, 28 June 2016

• European Parliament: Resolution of 28 June 2016 on the decision to leave the EU resulting from the UK referendum (2016/2800(RSP)) See David Allen Green’s comment¸ supra, on the “daft attempt” by the European Parliament.

EU and UK Governmental analysis

The EU referendum hub provides links to all Research Briefings, the most recent of which are listed below:

• House of Commons Library: EU budget and the UK’s contribution: Commons Briefing paper SN06455, 27 June 2016. This note considers the EU’s spending and how it is financed. It includes the UK’s contributions and receipts to and from the EU budget and discusses the UK’s rebate.

• House of Commons Library: Leaving the EU: How might people currently exercising free movement rights be affected? Commons Briefing paper CBP-7525, 27 June 2016. Many constituents are asking how leaving the EU would affect the immigration status and entitlements of British citizens currently living in the other EU Member States and EU citizens living in the UK.

• House of Commons Library: Leadership Elections: Conservative Party: Commons Briefing paper SN01366, 27 June 2016. This House of Commons Library briefing paper sets out the current rules for electing a Conservative Party leader and the background to their introduction.

• House of Commons Library: European Union Referendum 2016: Commons Briefing papers CBP-7639, 29 June 2016. Characteristics associated with votes for Leave and Remain and a timeline of key events from 23 January 2013 to Polling Day.

• House of Lords Library: Leaving the EU: Parliament’s Role in the Process: Lords Library notes LLN-2016-0034, 30 June 2016. The Note examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas: invoking Article 50; overseeing the negotiation process; ratifying agreements; repealing and reviewing domestic legislation. [On Twitter, David Allen Green, a.k.a. Jack of Kent commented “the best single document yet setting out all options for how UK can make A50 decision”.

Church of England

Further to the joint statement by the Archbishops of Canterbury and York on the EU referendum on Friday 24th June 2016, they have exercised their powers under the General Synod’s Standing Orders to make some time available at its brief Group of Sessions on 8 July for a debate on a motion “endorsing the Archbishops’ recent call for all to unite in the common task of building a generous and forward looking country, contributing to human flourishing around the world”.