on 16-Jul-2016 (Sat)

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Article 1348967992588

Jo Murkens: Brexit: The Devolution Dimension
#constitution #law

The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU. But there is another way of reading the result. 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. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order. Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electo

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Article 1365809171724

Robert Brett Taylor: Constitutional Conventions, Article 50 and Brexit
#constitution #public

Following the result of the referendum on British membership of the European Union, constitutional commentators have been embroiled in a discussion over the legal basis on which withdrawal from the EU can take place, in particular whether parliamentary approval is legally required before Article 50 of the Treaty on European Union can be triggered. The purpose of this post is not to explore these arguments in great detail, however, but to comment upon a point raised principally by Alison Young, but also in passing by Mark Elliott, regarding the possibility of a constitutional convention – a politically-binding rule – regulating the use of Article 50. In my view, it seems likely that the power to trigger Article 50 and withdraw from the EU remains legally with the Government under the royal prerogative, and not with Parliament. Although it is conceded that an Act of Parliament amending or repealing the European Communities Act 1972 would eventually be needed in order to give domestic effect to EU withdra

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Article 1365810482444

Alex Green: Why the EU Referendum Might Be Morally Binding

In an erudite and sophisticated post on this blog, Dr Yossi Nehushtan argues that the United Kingdom’s recent referendum on membership in the European Union is not morally binding on the British government. Whilst there is plenty there that I agree with, in a number of ways I think his conclusion was too quick. In this brief reply, I provide what I take to be the strongest case for the pro tantomorally binding nature of the referendum. The Nature of the Debate On the 23 rd of June 2016, I voted to remain because I believed that leaving would likely spell economic and political trouble for the UK, if not outright disaster. Hopefully I will be proven wrong. Whatever the truth might be, it is important for us to separate: a) the question of whether the referendum is pro tanto morally binding; from b) the distinct problem of whether or not leaving the EU is all-things-considered advisable. Consider the moral nature of promising. All other things being equal, the fact that I promised is a good reas

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Article 1365811793164

Yossi Nehushtan: Why Is It Illegal for the Prime Minister to Perceive the EU Referendum’s Result as Morally-Politically Authoritative?

In a previous post I argued that it is morally wrong to perceive the EU referendum’s result as morally and politically authoritative. My arguments were made in light of the fact that the referendum’s result is not legally binding. Here I wish to highlight a related yet neglected point and to argue that it is also illegal for the Prime Minister to perceive the EU referendum’s result as morally and politically authoritative. Why is it illegal for the Prime Minister to perceive the referendum’s result as morally-politically authoritative? On the legal front, the current debate focuses on the question of who has the legal authority to trigger Article 50 of the Lisbon Treaty and begin the Brexit process. Some argue (quite convincingly) that only Parliament has this authority (and see Barber, Hickman, and King’s post). Others argue that Government, and in fact the Prime Minister, acting under the Royal Prerogative, can act without the approval of Parliament. The latter is, apparently, the view of Governme

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Article 1365813103884

Robert Craig: Triggering Article 50 Does not Require Fresh Legislation

Introduction Considerable public interest has recently been focused on the ‘trigger’ mechanism for exit from the EU which is set out in Article 50 of the Lisbon Treaty. Expert opinion has divided between those who believe that the power to trigger Article 50 rests with the Executive using the legal authority of the royal prerogative from the Crown with no further parliamentary involvement necessary and those who argue that fresh legislation is required to confer statutory authorisation on the Executive to do something which could render nugatory rights under the European Communities Act 1972 (‘ECA’). An ingenious third way involving section 2(2) of the ECA has also been suggested. This note suggests that no fresh legislation is required and that the power to trigger Article 50 rests with the Executive but for very different reasons to those suggested by what might be termed the ‘prerogative’ camp. The live question is whether, if legislation were deemed necessary, a Parliament which is overwhelmingl

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Article 1365814414604

Thomas Fairclough: Article 50 and the Royal Prerogative

Introduction This piece seeks to address only one question: does Parliament or the Government have the power to decide to withdraw from the European Union in accordance with Article 50 TEU and through the notifying of the European Council of such a decision trigger the two year time limited formal withdrawal negotiations? Nick Barber, Tom Hickman, and Jeff King have argued valiantly that it will be Parliament who has to “pull the Article 50 trigger”. This piece will analyse their arguments and suggest that, contrary to their conclusions, it is the Government, under the Royal Prerogative, that has legal authority to start the Article 50 process. The Article 50 Process This piece assumes that it will be Article 50 that is used to begin the exiting process (as argued for here). It will also assume that the exiting process will begin; whilst there have been some suggestions that the United Kingdom will not try to exit the European Union I argue that this is unlikely as a matter of political fact (w

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Article 1365815725324

Colm O’Cinneide: Why Parliamentary Approval for the Triggering of Article 50 TEU Should Be Required as a Matter of Constitutional Principle

The argument that Article 50 of the Treaty on European Union (TEU) cannot be lawfully triggered without the consent of Parliament has generated plenty of excited discussion over the last week, both in specialist legal circles and in the wider world. The announcement by Mishcon de Reya that that legal action was pending to ‘ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament’ has brought this debate to boiling point. Some commentators have talked excitedly about a ‘legal dream team… launching a last gasp legal bid to preserve Britain’s European Union membership’. In response, there has been a visceral backlash in pro-Leave ranks against what they see as an attempt by conniving lawyers to thwart the will of the people. The front page of the Daily Express on 4 July 2016 led with the banner headline ’Top Lawyers in Threat to Referendum Vote & Democracy’, going on to warn about ‘outrage and rioting on the streets’. Similarly, Professor Frank Furedi commen

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Article 1365817036044

Mike Gordon: Brexit: The Constitutional Necessity of an Early General Election

In the stunning aftermath of the Brexit referendum, intense debateamong constitutional lawyers has focused on Art 50 TEU, and the domestic legal (or constitutional) requirements for a decision to leave the EU. In this post, I want to step back from this debate – important though it has been, and continues to be – and reflect more directly on the normative underpinnings of these arguments. I want to suggest that when we bring some of these normative ideas to the surface, and consider them head on, a greater priority emerges than establishing (or perhaps manipulating) claims as to the legal authority for triggering the Art 50 withdrawal process. Instead, I will argue that our normative instincts are best channelled towards pressing the constitutional case for an early general election, which is necessary to determine the kind of exit from the EU we ultimately experience in the UK. Normative Instincts in the Art 50 Debate The most obvious normative urge underpinning the Art 50 debate to this point h

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Article 1365818346764

Colin Harvey: Complex Constitutionalism in a Pluralist UK

Constitutional Pluralism If constitutional pluralism is taken seriously, then the voters of the United Kingdom of Great Britain and Northern Ireland delivered a complicated message to the Westminster Parliament and Executive; hardly a surprise in a multi-national state. A complex message will no doubt also emerge from all the democratic institutions within the UK. There was a simple majority in the referendum for ‘leave’, of course. Concurrent consent was absent from Scotland and Northern Ireland (and, of course, Gibraltar). A close vote, such as this, was never going to terminate the constitutional conversation, and the decision on what to do now demands further democratic deliberation. People want to keep talking about the legal and political implications and requirements. If ‘leave’ had secured majorities everywhere the picture might be slightly different. They did not. Mutual Respect Northern Ireland is the region with perhaps most to lose (my colleague – Professor Christopher McCrudden – h

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Article 1365819657484

Ewan Smith: What Would Happen if the Government Unlawfully Issued an Article 50 Notification without Parliamentary Approval?

In “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role” Nick Barber, Jeff King and Tom Hickman argued that it is Parliament, and not the government, who get to decide whether to trigger a notification under Article 50 of the Treaty of the European Union. I agree with them. Barber, King and Hickman base the argument on general grounds, drawing on the Case of Proclamations. However, it is important to consider the specialised rules that apply to the government’s power to conclude treaties. It is also important to think about the consequences of unconstitutional action, both as a matter of domestic and international law. It is not obvious that a British court could prevent the government from issuing a notification, nor is it obvious that an unconstitutional notification would be ineffective in international law. This post will explain these complications; then explain why an English court can issue a declaration to prevent the government from making a notification without Parliamentary appr

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Article 1365820968204

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

What more, if anything, is needed to translate the result of the referendum into actual exit from the European Union? This question, which hardly featured in public discussion before the poll, is now the subject of a fundamental public controversy. For the withdrawal process to begin, Article 50(1) of the Treaty of Lisbon requires a decision to leave the EU to have been made according to our own “constitutional requirements” (règles constitutionnelles in the less awkward French version of the text). So what counts as a decision to leave, and therefore as an event capable of triggering the withdrawal mechanisms in Article 50, is a question of domestic constitutional law. Three understandings of what would count as such a decision have attracted support in recent days. This post summarises those three positions before articulating and defending a fourth, hitherto neglected, possibility. I argue that the decision must be made under the statutory power created in section 2(2) of the European Communities Act