The week’s developments and legal opinions

Generally

The judicial review hearing in the name of Deir Dos Santos, a UK citizen is set for 19 July, although this will be a permission hearing, rather than a substantive hearing.  The Mishcon de Reya hearing is still at the pre-action correspondence stage; there has been no claim form or letter before action. It is understood that action is also being considered by a third party: see the JoK link The two Article 50 legal claims – the current details below.

Brick Court Chambers has launched a dedicated website, Brexit Law. Of particular interest at present are:

• EFTA and the EEA: What are they?, an issue that to date has not been often addressed, (but see the oral evidence of Michael Dougan, Professor of European law, University of Liverpool, to Treasury Committee on 5 July);

• Government lawyers say Article 50 can be triggered without Parliament; and

• Will the UK continue to implement EU law pending Brexit?, in which Helen Davies QC points out that until the UK completes the process of withdrawal from the EU, it remains obliged to transpose EU Directives into UK law: Article 288 TFEU.

Although posted immediately post-Brexit, The immediate legal consequences of Brexit under a new Prime Minister by Richard Gordon QC provides a useful summary of the headline issues to be addressed.

The UK Dimension

• Oxford Business Law Blog: A New Referendum is a Constitutional Requirement: Pavlos Eleftheriadis argues that the European Union Act 2011 establishes a ‘referendum lock’ before an amendment of the EU Treaties can be ratified by the UK and that Brexit will have to be approved both by an Act of Parliament and by the electorate in a (?further) referendum. [4 July]

• Marilyn Stowe’s Family Law Blog: Impact of Brexit on family law still unknown: Nigel Shepherd, chair of the family law organization Resolution, said the referendum had sparked “a period of great uncertainty … Currently, English family law is “intrinsically linked to that in other jurisdictions”, he explained, and it is unclear if this result will have an impact on “measures like Brussels IIa, which provides for uniform jurisdictional rules for divorce proceedings … maintenance is regulated by the EU so there is no way to know how this will be affected either”. [27 June]

• BBC Law in Action: Brexit: The Legal Minefield: 30-minute panel discussion chaired by Joshua Rozenberg, available here. [28 June]

• 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: “It has long been accepted constitutional practice to secure parliamentary consent for matters where there was genuine doubt, even if slight, about the scope of the prerogative. The clearest precedent is the transfer of Heligoland to Germany, where parliamentary consent was expressly sought, despite a very strong view that ceding territory fell within the prerogative. … This precedent continued to be followed when independence was granted to conquered colonies. This sound constitutional practice, motivated by the desire to avoid the constitutional crises that might otherwise result, commends itself for adoption in relation to Article 50”. [1 July]

• Global Government Forum: Sir Paul Jenkins, former UK Treasury Solicitor: EU Referendum interview: “The EU referendum debate lacks hard facts on how any UK exit would be negotiated … the frameworks for negotiations and voting could force Britain to make big concessions – or risk a chaotic departure with no trade agreement”. [1 July]

• Law and Lawyers: Obiter J has been putting up a systematic series of posts, of which the latest is It is Brexit (7) – Role of Parliament in Brexit decision and notification to EU. [3 July]

• Roger Masterman and Colin Murray, UK Constitutional Law Association: A House of Cards?: “The resilience of this unwritten, flexible, responsive and cumulative constitution will undoubtedly be tested in the weeks, months and years to come. It remains to be seen whether … it will be robust enough to survive”. [4 July]

• Joelle Grogan: UKHRB: Pressing the Red Button on Rights: during the two-year period after Article 50 has been invoked, EU law and EU rights will continue to apply in the UK. “But then what? What happens when the clock strikes zero?” [4 July]

• Michael Doherty, UK Constitutional Law Association: Should Making False Statements in a Referendum Campaign Be an Electoral Offence? Before anyone gets too excited, this is a speculative piece in which Michael states “In a referendum, voters are not choosing between a number of candidates but between (normally two) answers to a question. There was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote … So making a false statement in support of one of the alternative answers to a referendum question is not an electoral offence”. So perhaps it should be, but it isn’t. [4 July]

• Paul Bowen, QC, Brick Court Chambers: Parliament or Prime Minister: who can start the process of the United Kingdom’s withdrawal from the EU under Article 50 TEU? [4 July] “I see no reason why a court should not decide the constitutional question of whether Parliament or Prime Minister should start the Article 50 process. Moreover I think it would be in everyone’s interests to have an authoritative ruling on the meaning of Article 50 before the process commences.”

• Jon Stone, The Independent: Second EU referendum would be possible, former attorney general says: research suggests as many as 1.2 million Leave voters now regret their vote. [5 July]

• Rebecca Williams: Do We Have to Follow the Result of the Brexit Referendum? [8 July]

• Second reading, The House of Commons Library blog: Brexit: the People vs. Parliament? “If it comes to a parliamentary vote on Brexit, the 322 MPs who disagree with the majority of their voting constituents face a choice between changing their mind and voting with their constituency, or persisting in their opinion and voting with their ‘enlightened conscience’ (and the minority in their constituency)”. [8 July]

• Thomas Fairclough, UK Constitutional Law Association: Article 50 and the Royal Prerogative: “it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union”. [8 July]

Conservative Party leadership

• Anna Dannreuther and Adam Wagner, RightsInfo: Where The Tory Leadership Candidates Stand On Human Rights. [4 July 2016]

• BBC, First round of voting on Tuesday, 5 July: “Mrs May, who began the race as the frontrunner, got 165 votes; Minister Andrea Leadsom came second with 66; Michael Gove got 48 votes; and Stephen Crabb 34. Liam Fox is eliminated from the race, coming last with 16 votes”. Stephen Crabb voluntarily opted to withdraw from the race on Tuesday evening. [5 July].

• BBC, Theresa May v Andrea Leadsom in Conservative leader race: Michael Gove knocked out of Conservative leadership ballot. The result of the MPs vote was: Michael Gove 46; Andrea Leadsom 84; Theresa May 199. [7 July]

Possible implications for the ECHR

• Katie Jukes, RightsInfo: Brexit Fallout Continues, But Is The European Convention On Human Rights Safe? – This Week’s Human Rights News And Quotes “Political turmoil this week as leadership challenges afflict the UK’s major political parties following the vote for Brexit. Conservative leadership candidate Theresa May declared she would not withdraw the UK from the European Convention on Human Rights, while Government proposals for a ‘British Bill of Rights’ continue to stall”. [3 July]

• House of Commons Library: Leaving the EU: How might people currently exercising free movement rights be affected?, Briefing papers CBP-7525, 27 June [Note the caveat in the summary, viz.: STOP PRESS: for post-referendum commentary, see section 5 of Library briefing Brexit: what happens next? The remainder of this briefing has not been updated since the referendum result]. [27 June]

Legal action by Mishcon de Reya and Dos Santos

• Mishcon de Reya: 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 … 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”. [3 July]

• Jack of Kent: Does Article 50 require an Act of Parliament? A brief thought-experiment: “This post sets out a contention – based on a thought-experiment – that an Act would not be required”. [3 July]

• Jack of Kent: The Mishcon de Reya legal challenge on Article 50 – some thoughts: Six points raised, concluding with “if the action proceeds, then there is the prospect (if permission is granted to bring the claim as there is a permission stage before a substantive stage in judicial review cases) of a public hearing – with the incomparable Pannick as one of the advocates – and then a reasoned decision on what is required by Article 50(1).  It may even go quickly to the Supreme Court. This would be a fascinating case to say the least for anyone interested in law and policy. Last, if the government concedes there has to be an Act (or if – dramatically – the courts declare that an Act is required) then Brexit becomes even less likely. [3 July]

• Joshua Rozenberg: Law Society Gazette: Brexit: making the big call: on the prospective Article 50 litigation. [4 July]

• Jack of Kent: The two Article 50 legal claims – the current details: a summary of the Mishcon de Reya and the Dos Santos claims. In respect of the latter, the remedies sought appear to be (a) a declaration and permanent injunction and (b) an interim injunction. Significantly, the declaration sought is that a “decision” for the purposes of Article 50(1) has to be a decision taken by parliament, and not under the royal prerogative. [top]

UK: Non-legal issues

EU e-petition

On Tuesday 28 June 2016, the Petitions Committee issued the following statement

“EU Referendum Rules triggering a 2nd EU Referendum

The Committee has decided to defer its decision on this petition until the Government Digital Service has done all it can to verify the signatures on the petition. We have already had to remove 77,000 fraudulent signatures.

The Committee wishes to make clear that, although it may choose to schedule a debate on this petition in due course, it only has the power to schedule debates in Westminster Hall – the second debating chamber of the House of Commons. Debates in Westminster Hall do not have the power to change the law, and could not trigger a second referendum”.

At 07:03 on 9 July there were 4,125,312 recorded signatures.

On 8 July the Foreign and Commonwealth Office responded on behalf of the Government as follows:

“The European Union Referendum Act received Royal Assent in December 2015, receiving overwhelming support from Parliament. The Act did not set a threshold for the result or for minimum turnout.

The EU Referendum Act received Royal Assent in December 2015. The Act was scrutinised and debated in Parliament during its passage and agreed by both the House of Commons and the House of Lords. The Act set out the terms under which the referendum would take place, including provisions for setting the date, franchise and the question that would appear on the ballot paper. The Act did not set a threshold for the result or for minimum turnout.

As the Prime Minister made clear in his statement to the House of Commons on 27 June, the referendum was one of the biggest democratic exercises in British history with over 33 million people having their say. The Prime Minister and Government have been clear that this was a once in a generation vote and, as the Prime Minister has said, the decision must be respected. We must now prepare for the process to exit the EU and the Government is committed to ensuring the best possible outcome for the British people in the negotiations.”

Whether or nor the petition is recommended for debate still remains to be seen.

Early Day Motion

At  07:03 on 9 July, there were only 12 names on  Early Day Motion 243

The Scottish and Northern Irish dimensions

• Paul Reid, UK Constitutional Law Association: Brexit: Some Thoughts on Scotland: “as far as Scotland is concerned, there is a legal framework within which the Scottish Parliament and Scottish Government are required to operate. Whatever the political pressures to pursue a given course at this uncertain time, it is important that it falls within the existing law. To the extent that there is a doubt about that, it is in everyone’s interests that the doubt be removed sooner rather than later”. [2 July]

• Thomas Fairclough, UK Constitutional Law Association: Judicial Review and Article 50: Some Preliminary Issues [6 July 2016]

• Graeme Cowie, Constitutional Law UK: Scotland and a Second Independence Referendum – The Obstacles and Challenges and the Comparative Solutions, [7 July 2016]

• Colin Harvey, UK Constitutional Law Association: Complex Constitutionalism in a Pluralist UK – Constitutional Pluralism: the Professor of Human Rights Law at Queen’s University Belfast concludes his analysis with “[n]one of this is to deny certain aspects of political reality; the majority of voters in the UK did opt to leave the EU. That must be recognised. It is simply to insist that constitutional realities, in a pluralist UK, remain complex. The voters therefore delivered a complicated message”. [2 July]

• Jo Murkens, European Politics and Policy: Brexit against the wishes of Scotland and Northern Ireland would violate the UK’s constitutional settlement: “The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing”. [6 July]

UK Parliament, European Parliament

• House of Lords Science and Technology Committee: EU membership and UK science follow-up evidence session: On Tuesday 19 July, the House of Lords Science and Technology Committee will hold an evidence session to follow up on its report ‘EU membership and UK science’ after the EU referendum: Report; Evidence volume; Inquiry.

• Urgent Question on legal status of EU nationals in UK, [Commons Hansard: 4 July 2016 Vol 612 Col 607]: Minister for Security and Immigration, James Brokenshire, responded to an Urgent Question asked by Labour MP, Gisela Stuart, in the House of Commons on the legal status of EU nationals residing in the UK in the event of the UK leaving the EU.

• House of Commons, Foreign Affairs Committee: On 5 July, Oliver Letwin gave evidence on Brexit negotiations at the Foreign Affairs Committee’s   evidence session as part of its new inquiry Implications of leaving the EU for the UK’s role in the world.

• House of Lords: Debate on EU referendum, [Lords Hansard: 5 July 2016 Vol 773 Col 1849: 6 July 2016 Vol 773 Col 2034]: Members of the Lords, including an independent reviewer of national security arrangements in Northern Ireland, a Professor of Contemporary British History and a former Chancellor of the Exchequer, debated the outcome of the referendum on membership of the European Union.

• House of Commons Opposition Day Debate, [Commons Hansard: 6 July 2016 Vol 612 Col 937] Moved by Andy Burnham (Leigh) (Lab), Question put and agreed to: Ayes: 245, Noes: 2,“That this House notes that there are approximately three million nationals of other EU member states living in the UK; further notes that many more UK nationals are related to nationals of other EU member states; rejects the view that these men, women and children should be used as bargaining chips in negotiations on the UK’s exit from the EU; and calls on the Government to commit with urgency to giving EU nationals currently living in the UK the right to remain”.

• Treasury Select Committee The UK’s Future Economic Relationship with the European Union, HC 483: oral evidence from Professor Michael Dougan, Professor of European Law, University of Liverpool, Dr Robin Niblett CMG, Director, Chatham House, Sir Emyr Jones Parry GCMG, former UK Permanent Representative to the United Nations and NATO, and Raoul Ruparel, Co-Director, Open Europe.

In responding to a question by Helen Goodman on the current situation and the work to be undertaken by the Cabinet Office, [Q 82], Professor Dougan said:

“If we leave without having made a conscious political choice that that legislation needs to be replaced—whether it is replaced in the sense of pure replication or whether it is replaced in the sense of a new statutory regime that differs from the current norms—the danger is that will simply disappear from our legal system upon the point of withdrawal.

We will be left with legal vacuums where suddenly we do not have any regulation of important parts of the economy and society. This does not just apply to agriculture. It applies to important parts of environmental policy and consumer rights. It applies to quite significant parts of financial services regulation. All across the legal system there are pockets of our law—EU Regulations in particular—that will need to be put on to a firm statutory instrument basis. If we do not do that, they will disappear. To be frank, it will wreak havoc with the authority of public bodies to take legally binding decisions and with the legal relations of individuals and businesses”.

Commenting on a question from Wes Streeting on whether, according to Michael Gove, “The UK holds all the cards in its negotiations with the EU”, [Q 122] Sir Emyr Jones Parry: said

“I do not think Mr Gove has done sufficient international negotiations to be able to comment. So many comments have been made; I have to say this frankly to this Committee. Politicians have brought politics into such disrepute through the way that both sides have conducted this debate. There were so many inaccuracies and comments either based on ignorance, a failure to understand, or, at the other end, close to mendacity”.

EU and UK Governmental analysis

• Office of National Statistics, (ONS): Economic impact of the referendum on the EU: “Respondents to ONS surveys during this pre-referendum period have not so far indicated that the referendum has had much effect on the figures in their returns. ONS will shortly be publishing statistics covering the period after the referendum on 23 June. The table … sets out the dates of publication of ONS’s main economic statistics that cover – in at least part – the post-referendum period and that will be released over the month ahead. A fuller table in the annex shows the dates when any potential impact from the recent EU referendum may feed through to ONS economic statistics over a longer time horizon”.

Earlier posts on Brexit

• Brexit Basics, 27th June

• Brexit Basics 2: update 2nd July