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Article 50: Circumstantial Versus Direct Evidence?

08/08/2016 12:44 | Updated 08 August 2016

And the uncertainty continues ... despite the fact that the EU Referendum is now almost six weeks old. Our Prime Minister has been doing the rounds in key EU countries as she pursues her charm offensive and attempts to acquaint herself with her European counterparts let alone explore creative ways in which it might be possible to square the circle and decide on the appropriate time for triggering Article 50 TEU.

Mind you though! A cross-party coalition of peers in the House of Lords has also been discussing options to 'revisit' the referendum result in the hope that any delay would "give time for Britain's membership of the EU to be put to the public again in either a second referendum or general election". Theirs is a persuasive strategy (otherwise known as a delaying tactic) since the Government can resort to the nuclear option of using the 1911 Parliament Act to allow legislation to be pushed through via the Royal Assent. In blunt words, the elected House of Commons has the ability - eventually - to overrule the appointed House.

In the meantime, we are reassured to learn that we need not subscribe nostalgically to Nigel Farage's irascible comments and change any time soon our burgundy passports for the old blue ones again. But the Brexit machinery is in full swing, not least with those who think they have much to say to us - us being the largely spoon-fed public - such as by Craig Oliver, David Cameron's former spin doctor, who is busily writing Unleashing Demons to inform us on the behind-the-scene discussions of the referendum campaign.

However, this is also where the courts step in. And being an international lawyer myself, I am biased enough to aver that the judicial process could now separate the chaff from the wheat and judge on the best way forward. This is why the courts have already been seized to determine whether a Prime Minister can use the Royal Prerogative to trigger Article 50 or whether it needs ab initio a vote in the House of Commons.

In my opinion, and despite some media speculation, the issue is not to challenge the outcome of the plebiscite itself. I have previously articulated my serious reservations in the way this vote was choreographed and later conducted by some Leavers. For now, though, the real argument for me is as follows: if and when the Government decides that it will trigger Article 50 and start in earnest the two years of very laborious negotiations with the taskforce of an EU Commission headed by a tough Michel Barnier (dubbed le crétin des Alpes in some quarters), should it rely on the Royal Prerogative and proceed simply with a letter from 10 Downing Street informing Brussels that the UK formally withdraws from the EU? Or should there be a debate in the House of Commons, a subsequent free vote and a parliamentary Act?

According to Dr Thomas Horsley, an expert on EU law from Liverpool Law School, the challenge to the prime minister's ability to trigger Article 50 without the prior approval of Parliament is "based on a particularly wide reading of a set of cases on limits to the exercise of prerogative powers". In lay terms, Parliament must be consulted at the very least - if not also the public in a General Election.

I have two moots on this legal question. On the one hand, triggering Article 50 would ipso facto override the European Communities Act 1972 whilst it is a legal convention that Parliament alone can change its own legislation. [And incidentally, the European Communities Act 1972 legislated for the accession of the UK to the EEC (the Common Market) and for the incorporation of EU law (then Community law) into domestic UK law.] Withdrawal would render the 1972 Act hollow as it would cut across Parliament's intent in enacting the ECA. Since Parliamentary intention trumps prerogative power, the latter cannot be used to initiate the withdrawal process. Instead, it must be the role of Parliament to fulfil its constitutional duty.

Besides, and assuming for one short minute that we go down the road of the Royal Prerogative, what next? "Brexit means Brexit" is a dandy slogan but it is void of legal definition and does not provide any indices whatsoever on how we see the way forward. Nor does it shed light on the mechanics of withdrawing from the EU and untangling ourselves from thousands upon thousands of laws that have been sewn together over four decades. Surely, Parliament should have a say on how we plan to forward the UK with 'brexit'?

The summer recess is upon us, and it is perhaps an opportune period for Parliament to wind down the rhetoric so the courts can adjudge on the legal pathways available. After all, the stakes are far too high for us to get it wrong since that would expose us to deep-pocket litigation let alone a real-time case of #Brexageddon!

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