Law Firm Says Parliament Should Have Vote on Brexit
London law firm Mishcon de Reya is leading moves to give lawmakers a say on when and whether to start the legal process for leaving the European Union, after last month's Brexit referendum.
In a carefully worded statement on its website, the firm said, "Legal steps have been taken to ensure the U.K. government will not trigger the procedure for withdrawal from the EU without an act of Parliament.
It did not say who the "group of clients" it is acting for are, although readers of the statement were referred to an article in the Financial Times, which said they were "a group of businesses."
The statement also failed to make clear exactly what steps have been taken so far, although it did say it has been in correspondence with government lawyers to seek assurances the government will uphold the constitution and protect the sovereignty of parliament.
Mishcon said it hired prominent attorneys David Pannick and Tom Hickman to act as counsel in the case backed by Rhodri Thompson and Anneli Howard, but it did not say precisely what legal remedy it is seeking and through what legal process.
The referendum result is not legally binding and does not in itself start the process of leaving the EU. The withdrawal process only begins when Article 50 is invoked. But while the government has suggested it has sufficient legal authority to trigger the process on its own, Mishcon argues the decision "rests with the representatives of the people under the U.K. constitution."
The referendum has exposed bitter divisions in British society. The relatively close result of 52% in favor of Brexit and 48% in favor of remaining in the EU has left the losing side looking for means to derail the process. One way might be to rely on a perceived pro-remain majority in parliament to delay the start of negotiations or block exit altogether.
But legal opinion is divided on the constitutional position. Some lawyers, including both Pannick and Hickman, have published articles arguing that parliament has the final word because the royal prerogative must not be used to override existing acts of parliament or to frustrate what parliament has decided.
However, Mark Elliott, professor of Public Law at the University of Cambridge and legal adviser to the House of Lords Select Committee on the Constitution, wrote in Public Law for Everyone that the 1972 act only puts into law what the government of the time had signed up to internationally using its treaty-making powers. Legislation facilitating the discharge of treaty obligations, he said, "does not occupy the same legal space as, therefore does not conflict with, the government's prerogative power to contract, renegotiate or extricate the U.K. from treaty obligations."
However, Elliott went on to add that while on his analysis the Prime Minister can trigger Article 50 without reference to parliament "it does not follow that it would be a wise or sensible thing to do."
Parliament, he said, has a crucial role in shaping the way through the immense volume and complexity of the issues unresolved by the referendum.
"For all that the U.K. has experimented with direct democracy through the holding of a referendum .... the U.K. remains, fundamentally, a parliamentary democracy, and it cannot plausibly be argued that the referendum substitutes for proper parliamentary involvement," he wrote.
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