back to article Prominent Brit law firm instructed to block Brexit Article 50 trigger

Law firm Mishcon de Reya has been instructed to launch a legal challenge to block Britain from leaving the European Union, in spite of the popular vote to leave the bloc. Solicitors and barristers from Mishcon de Reya are working with Blackstone, Matrix and Monckton Chambers to argue Article 50 of the European Union – the …

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  1. Tom7

    What a horrible waste of time and money

    AFAICT, the basis of this action is that the country's entry to the European Union happened through the European Communities Act 1972, and triggering Article 50 of the Lisbon treaty without an act of parliament would be using prerogative powers to override that legislation. Since the prerogative powers are generally subject to legislation, as the sovereign-in-parliament is sovereign, not the sovereign, then using them to override legislation in this way would be unlawful.

    But. The Lisbon treaty was added to UK law by the European Union (Amendment) Act 2008. So doesn't that legislation incorporate the Lisbon treaty into UK law, giving the government the right to trigger article 50 when it wants?

    I'd be interested to hear informed opinion counter to this position; as far as I can tell, existing legislation enables the government to trigger article 50 without a new authorisation from parliament.

    1. John H Woods Silver badge

      Re: What a horrible waste of time and money

      "I'd be interested to hear informed opinion counter to this position; as far as I can tell, existing legislation enables the government to trigger article 50 without a new authorisation from parliament." --- Tom7

      This was my view too, and was the view of all three guest experts on BBC R4's Law in Action special on the Referendum result. However, the arguments presented by Mishcon de Reya do seem to suggest that it may not be that simple: as the UK constitution is unwritten, there seems to this non-expert a possibility that it could indeed be the case that one Act of Parliament can only be overturned by another.

      * Mishcon website a bit slow at the moment, I think a lot more people are going to the horse's mouth to see for themselves.

    2. graeme leggett Silver badge

      Re: What a horrible waste of time and money

      Here's a bunch of legal experts talking about. The fact that (between the article and the comments) none of them are in complete agreement with the others seems to show what a legal minefield it is.

      Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role

      And here's a crowdfunded effort to discover in their own words "Who gets to decide whether we leave the European Union: the Prime Minister or Parliament?" Should Parliament decide?

      1. tony72

        Re: What a horrible waste of time and money

        Could be irrelevant anyway. Just because a majority of MPs backed remain up to the referendum does not mean that they would want to block the expressed will of the people. Any MP in a constituency that backed Leave could pretty much kiss goodbye to his job if he voted against triggering Article 50, so I'd say it's quite likely that Parliament would pass it, if it came down to it..

        P.S. your link didn't work for me, I found this link - Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role - instead.

        1. strum

          Re: What a horrible waste of time and money

          >Could be irrelevant anyway.

          Could also be irrelevant if (then) current PM says 'I invoke Article 50', the EU will then behave as if it had happened, then and there, and worry about the legalities later (when they don't matter anymore).

          1. Uffish

            Re: "... and worry about the legalities later..."

            That would be fun, I can see the adverts "Have you been forcibly repatriated? Phone Gribble and Gribble for a free application form and join the thousands benefiting from the European Court of Human Rights ruling...".

            But I expect that I will stay in France as a British citizen, shame really, I could do with some free money.

        2. Anonymous Coward
          Happy

          Re: What a horrible waste of time and money

          Just because a majority of MPs backed remain up to the referendum does not mean that they would want to block the expressed will of just over half the people. FTFY.

          They could, for example, choose to represent the will of their particular constituents. e.g. You think all the SNP MPs will vote to leave the EU?

          1. Terry 6 Silver badge

            Re: What a horrible waste of time and money

            And by the time it happens the 16-18 year olds who couldn't vote this time will be able to. And may well be making their feelings felt. Added to the 18-24s who will have grown up a bit and may be more prepared to make their votes count at the next election.

            And at the other end of the age range quite a few of the current Brexiters may not be voting anymore.

            Come to think of it, I wonder what proportion of Brexiters either don't normally vote but did this time or vote for the more extreme minority parties, because "immigrants" .

            1. Anonymous Coward
              Anonymous Coward

              Re: What a horrible waste of time and money

              "I wonder what proportion of Brexiters either don't normally vote but did this time or vote for the more extreme minority parties, because "immigrants" ."

              Spoke to a nice old guy in the local the other night. Mid 70s. Told me he had voted for the first time in thirty years because he hates people coming here form different places, because - and this is a quote "well, they're different. They shouldn't be here. And i know that's unfair and wrong and it'll hurt young people if they can't travel and work, but that's the way I feel."

              When he was called a selfish old fool by the young lady behind the bar, he agreed with her.

              1. Dr Paul Taylor

                Result not significant

                Any organisation that does have a codified constitution has clauses in it about how to change it, typically requiring a 2/3 majority. In the US some large proportion of states have to ratify it. The first Scottish devolution referendum was in favour but not by a large enough turnout. Tory trades union law puts up hurdles for strike ballots. Yes, in an election, some> candidate has to win, even if by 50.0001%. When the issue is to create economic chaos, as we are already seeing, 52% is nowhere near a big enough mandate.

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Result not significant

                  When the issue is to create economic chaos, as we are already seeing, 52% is nowhere near a big enough mandate.

                  Christ, will people just drop this pissy dribble argument. We didn't have a bloody 2/3 majority vote to get into the draconian shitpile attempted superstate so why the hell should we need one to get out?

                  1. Ken Hagan Gold badge

                    Re: Result not significant

                    With the exception of the recent coalition, no government of the UK has enjoyed anything close to 52% of the votes cast in a general election, so unless we view all the governments of the last 80 years as somehow illegitimate, I think 52% has to be regarded as "overwhelming".

                    1. Paul Shirley

                      @Ken Hagan

                      "unless we view all the governments of the last 80 years as somehow illegitimate"

                      You're assuming we don't think that.

                      I've never voted for a winning candidate in a UK election and first past the post means I might as well never have voted. I certainly haven't felt represented by the winners, even the coalition simply served to stop some of the madness, not do good.

                  2. Terry 6 Silver badge

                    Re: Result not significant

                    AC your comments, "draconian shitpile attempted superstate" don't lend support to the view that you are making a well balanced and thought through judgement here. Rather more it suggests that you'd seize any route to leave, even this pathetically insignificant majority

                  3. Stoneshop

                    Re: Result not significant

                    We didn't have a bloody 2/3 majority vote to get into the draconian shitpile attempted superstate

                    From the moment you got in up until two weeks ago you could have influenced (and did) how that "draconian shitpile attempted superstate" functioned. That, IMO, allows for a lower threshold on entry: because you can have a say in which way things are to develop. Furthermore, economic and social conditions have changed a bit over the 40 years you've been in; both within the UK and the EU as well as globally; it would behoove all of the involved to take that into account as well, and setting a different threshold for exit now might well be one of the consequences of that.

                  4. KeithR

                    Re: Result not significant

                    "We didn't have a bloody 2/3 majority vote to get into the draconian shitpile attempted superstate"

                    Fucking braindead soundbite bullshit with about as much truth to it as anything written on the Brexit Battle Bus...

          2. if(i == alive) { live_free = true; government = NULL; }

            Re: What a horrible waste of time and money

            By just over half what you mean is by 1,269,501 people. IMO they should represent the will of their constituents but in this case it would simply result in the majority voting to leave and so would make little difference. Better just to let the priminister invoke article 50 as soon as possible then we can all get on with our lives.

        3. Anonymous Coward
          Anonymous Coward

          Re: What a horrible waste of time and money

          And vice versa, our area voted overwhelming to stay. We have told our MP in very clear words that if he votes to leave, we will do everything in our power to deselect him, put candidates against him, in other words make his life utterly miserable.

          He wants to vote to stay but has no idea whats going to happen.

          1. Anonymous Coward
            Anonymous Coward

            Re: What a horrible waste of time and money

            And vice versa, our area voted overwhelming to stay.

            Your area voted 52% to leave. Maybe the bit of that area where you live had another view, but that's not how the referendum was run.

            Put it another way, 57% of Londoners voted for Sadiq Khan as Mayor. Just because people in Barnet voted for Zac Goldsmith doesn't change the result, because it wasn't run on borough lines. London voted for Khan.

            Interestingly, if the EU referendum had been counted on a consitituency basis, the results would have been very different. Of the 399 'regions' (parliamentary constituences weren't used) 270 voted to Leave, and 130 to Remain. That's a 67% vote in favour of Leave, which in a general election would be called a landslide victory. It's bigger than Tony Blair got in 1997 (63%) or Margaret Thatcher in 1983 (61%), despite including Scotland (100% of regions voting for Remain) and N. Ireland (56% of regions voting to Remain).

      2. P. Lee

        Re: What a horrible waste of time and money

        It appears that the effort is not really aiming to find the proper way to do it, but an effort to override the vote of the 52% of those who turned out for the referendum.

        Surely neither the Prime Minister nor Parliament decide - both of them should be seeking to enact the expressed will of the people.

        It would be a brave new PM indeed who took up the job and said, "er, well, I'm not going to do what you asked, I'm going to do what I want to do, instead."

        Trying to block Brexit with a legal challange? That's ambulance chasing for autocracy. "Have you had a referendum that didn't go the way you were hoping? Are you tired of being out-voted by the majority? Call Legal Challenges now on 0800 NoMo rales. That's 0800 NoMo rales and talk to one of our specialists about getting your minority opinion made law, regardless of adverse electorates or past inconvenient referendums."

        1. Paul Shirley

          Re: What a horrible waste of time and money

          "It appears that the effort is not really aiming to find the proper way to do it, but an effort to override the vote of the 52% of those who turned out for the referendum."

          Alternately this is the only way to stop both sides bitching endlessly that the notification wasn't legal when no one gets exactly what they want. Business wants certainty, even the certainty that the result isn't what they hoped for.

          1. Frumious Bandersnatch

            Re: What a horrible waste of time and money

            Alternately this is the only way

            Surely you mean "alternatively", Shirley? (and yes, I did call you Shirley)

        2. Dave Bell

          Re: What a horrible waste of time and money

          It's close enough, and the number of people who didn't vote is big enough, that I don't think the answer is obvious.

          There were also some blatant lies in the campaign, from both sides.

          There is a big difference between saying Parliament should vote, and saying how they should vote.

          I am not sure we can trust any individual. I am not sure how we can expect Parliament to act differently to the Referendum Vote, but I have no reason to object to them taking a vote. And, when a big part of the fuss is the claim that the EU has usurped the authority of Parliament, saying they can't vote looks a bit odd.

          Some of the things blamed on the EU have been the choices made by Parliament.And some politicians have been God's gift to snake-oil salesmen.

        3. Doctor Syntax Silver badge

          Re: What a horrible waste of time and money

          'It would be a brave new PM indeed who took up the job and said, "er, well, I'm not going to do what you asked, I'm going to do what I want to do, instead."'

          It would also be a brave PM who took up the job and said "I'm going to go ahead with what you voted for even though most of you are against it now you've discovered what the consequences will be.".

          52% falls well short of what you'd have to consider a "expressed will" for a change of this magnitude. First past the post might be reasonable for putting someone into Parliament to be your MP for a maximum of 5 years. It should take a lot more than that for what would be effectively an irreversible change in constitutional and economic affairs with a massive impact.

          1. Anonymous Coward
            Anonymous Coward

            Re: What a horrible waste of time and money

            52% falls well short of what you'd have to consider a "expressed will" for a change of this magnitude.... It should take a lot more than that for what would be effectively an irreversible change in constitutional and economic affairs with a massive impact.

            51% was enough to create the EU, that's how many French people voted for it.

          2. Anonymous Coward
            Mushroom

            Re: What a horrible waste of time and money

            Of course if it was 52 percent who had voted remain you would have no problem with that would you

            Funny how a majority vote is irrelevant when the vote goes against you. It's time you remain people grew up and, more importantly, shut up.

            Cheers... Ishy

            1. organiser

              Re: What a horrible waste of time and money

              If 52% had voted to remain I would have called that a too close to call as well, accept no change and be happy with the status quo. Leave voters want to make a major change based on what is effectively a tie.

              1. fruitoftheloon
                Happy

                @organiser: Re: What a horrible waste of time and money

                Organiser,

                Err no matey, a tie would have been 50/50.

                I am happy with the outcome of the referendum, I also am grown up enough to acknowledge that it it went the other way, that would be fine too....

                Regards,

                Jay

              2. MrZoolook

                Re: What a horrible waste of time and money

                Last I knew, a tie was a result without a clear winner. Unless percentages are worked out in 104 points, 52 percent is a win.

                Or am I mistaken?

              3. Terry 6 Silver badge

                Re: What a horrible waste of time and money

                I could even go further. If only 52% had voted to remain I'd reluctantly have had to accept that we would need to revisit this issue. Perhaps after the dust had settled a bit and rational discussion take place, because we'd have had the luxury of waiting a few years (no action being required to stay the same).

              4. TimB

                Re: What a horrible waste of time and money

                Well of course you'd be happy with that. Because "accepting the status quo" is the entire position of Remain, so it wouldn't be a tie at all.

                What you're actually saying is "50% isn't enough to oppose what I want to do, my vote should win unless at least 55% (60%? 75%? 99%?) agree with my point of view.

            2. Jedit Silver badge
              Stop

              "if it was 52 percent who had voted remain you would have no problem "

              Since we're talking reversals of the situation: Nigel Farage himself said that 52% Remain would not in his eyes constitute a settlement of the matter, so you should have no problem with Remain voters thinking 51.9% Leave should not settle it.

              Funny how a majority vote is only relevant when the vote goes in your favour, etc etc.

              1. Paul Shirley

                Re: "if it was 52 percent who had voted remain you would have no problem "

                It remain won we would still have the xenophobe minority causing trouble, the leavers demanding a re-run and continue to have government after government talk about reforming the EU while blocking actual reform at every opportunity.

                A smaller disaster but once such a polarised referendum was called only an overwhelming margin would minimise the damage. It's a real pity there was no 3rd option: for a deadline on genuine reform before a 2nd referendum, something that would make both the UK and EU leaders take the issue seriously and shift power away from both of them to us. Something no UK politician would ever allow to happen.

            3. KeithR

              Re: What a horrible waste of time and money

              It was a LEAVE campaigner that started the petition to try and make the result binding only with a SIGNIFICANT majority, from a SIGNIFICANT turnout.

          3. VulcanV5

            Re: What a horrible waste of time and money

            And you were of this view *before* voting? You contacted your MP about it / wrote to your local paper / set up a special 52%_too_little blog / scribbled a thousand twits?? You were so concerned about this obvious failure to properly quantify the "expression of the people's will" that on June 23rd last you were in the deepest of deep despair?

            And then you voted Remain.

            Aw dear.

            1. This post has been deleted by its author

            2. Terry 6 Silver badge

              Re: What a horrible waste of time and money

              VulcanV5 as often now reported, it was a leaver who set up a petition to parliament for a vote to require a bigger majority to be valid. When they thought they'd lose by a small margin. And Farage himself who'd said that a +/- 2% vote would need a new referendum, in that circumstance.

              But yes, I'd have to agree, more of us should have thought about this beforehand. On both sides.

        4. John Brown (no body) Silver badge

          Re: What a horrible waste of time and money

          "It would be a brave new PM indeed who took up the job and said, "er, well, I'm not going to do what you asked, I'm going to do what I want to do, instead."

          Why not? Pretty much every PM ever has failed to do what the people voted for. How many campaign manifesto points ever come to pass?

        5. Anonymous Coward
          Anonymous Coward

          Re: What a horrible waste of time and money

          It would be a brave new PM indeed who took up the job and said, "er, well, I'm not going to do what you asked, I'm going to do what I want to do, instead."

          like it'd be the first time thats ever happened ....

        6. Anonymous Coward
          Anonymous Coward

          Re: What a horrible waste of time and money

          "enact the expressed will of the people"

          The expressed will of around 1/3 of the voting population some of whom then admitted it was just intended as a protest vote. As Kipling wrote

          Holy priesthood, holy king or holy people's will

          Have no truck with the senseless thing - order the guns and kill!

          Just the expression "people's will" has unpleasant historical echoes. It's irrational, and irrational people who have been stirred up by demagogues do stupid things - as the Athenians and the Germans found out. Stuff Michael Gov e and his anti-academic views, they weren't exactly good for education. We need some real experts, and not politicians parroting whatever their backers have told them to say.

          1. MrZoolook

            Re: What a horrible waste of time and money

            1/3 of the voting population is still higher than less than 1/3 of the voting population.

            1. KeithR

              Re: What a horrible waste of time and money

              "1/3 of the voting population is still higher than less than 1/3 of the voting population."

              And still 2/3 less than EVERYONE voting, in case you didn't notice...

        7. JMoore

          Re: What a horrible waste of time and money

          "That's ambulance chasing for autocracy. " Too dramatic - it would be nothing more than a political equivalent of the pop-up asking you if you are really sure before reformatting your hard drive.

        8. The First Dave

          Re: What a horrible waste of time and money

          The whole point of having elected representatives is to take decisions without needing to ask the public about every little detail. They are _expected_ to be able to take rational decisions based on the available facts, without getting derailed by the Daily Fail

    3. Paul Shirley

      Re: What a horrible waste of time and money

      The problem is Article 50 explicitly requires notification to be in line with the leaving states existing law and process. That strongly suggests it does not override the existing 1972 legislation.

      For the record: I would much prefer legal action was aimed at forcing immediate issuance of article 50 notification. The prospect of UK politicians playing chicken with the EU for as long as they can get away with is good for no one.

      1. Barely registers
        Flame

        Re: What a horrible waste of time and money

        [[The prospect of UK politicians playing chicken with the EU for as long as they can get away with is good for no one.]]

        It's good for me as it brings non-EU status to the UK _after_ I've been resident in France for 5 years and I can take out French citizenship. My family's fate is rather uncertain at the moment particularly if ($deity forbid) forcible repatriation of EU citizens occurs.

        Allez les bleus!

        1. SundogUK Silver badge

          Re: What a horrible waste of time and money

          Forcible repatriation is not going to happen. The Spanish economy would not survive throwing out 300,000 £ spending Brits.

          1. Jess

            Re: The Spanish economy would not survive throwing out 300,000 £ spending Brits.

            No, what they would do is to make it too expensive for the poorer 40-60%

          2. Barely registers

            Re: What a horrible waste of time and money

            We can only hope.

            IF (caps) deportation comes to pass then we are in the roundup buses and leaving everything we worked for and built here.

            Currently, we are seen by Theresa May as no more than a "negotiating point" http://www.independent.co.uk/news/uk/politics/brexit-immigration-eu-citizens-theresa-may-uk-a7116971.html

            Colour me not reassured. No-one tilting at the Tory leadership is saying up front and clear "you can stay". Hollande isn't exactly taking the line of someone prepared to defend the position of families like us, especially when Le Pen is finding such support amongst both young and old.

            Don't forget. The default fallback position, if all 27 remaining states fail to accept the settlement terms after 2 years negotiation (unless extended), is for all treaties to cease effect. That means no right of residence for any EU families in the UK, and no right of residence for any UK family in the EU.

            That's an appealing outcome for the far right in Austria and the Netherlands.

            And that means buses.

            Very much IF and very much "hope not", but very much not 100% "not going to happen".

            Bit of a rant on my part there, but we're the ones currently in the bait box, if not yet wriggling on the hook.

            1. Hans 1

              Re: What a horrible waste of time and money

              Exactly, and, some of us do not have the right to vote in the UK, because we left UK when we were infants - so we had no say in what was decided yet still affects us. Don't get me wrong, I never thought at the age of 18 I would need to intervene in British domestic political affairs, since I do not [wish to] live there, [ever], and I only had a few months to register when I reached 18 (15 years rule for British living abroad) ...

              So, as I wrote previously, attempting to get German or French nationality ... well, not immediately, timing is everything, I need to keep my British passport, so I need to actually apply after the brexit ... I might have to live a few months as an illegal immigrant in France ... so what!

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