Parliament and Article 50

Parliament effectively control the prerogative powers of government. The government can send a letter triggering Article 50  without asking Parliament. Like all such deeds Parliament can review or vote down any action of the government. If the government uses powers in ways Parliament does not like Parliament can pass a vote of no confidence. We do not need lawyers telling us how to legislate or control government.

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48 Comments

  1. Mick
    Posted July 4, 2016 at 5:32 am | Permalink

    Is it just me but I’ve got a gut feeling that the British who voted for out are going to get stitch up and article 50 isn’t going to get invoked and that some how they will try and call another referendum on the eu, god help them if they do betray us

    • DaveM
      Posted July 4, 2016 at 6:19 am | Permalink

      One of the many reasons the majority of voters voted to Leave was a disillusionment with the so-called political class. With this delay on invoking A50 and the childish in-party squabbling they’re causing those outside the bubble even more exasperation.

      Someone needs to get a grip now, John. Our political system and constitution needs an overhaul and the country needs to start moving forward outside the EU. Can’t you have a word and tell your colleagues to stop dodging the ball, grasp the nettle and get the hell on with it? Because from outside the bubble our government looks like a bunch of kids.

    • oldtimer
      Posted July 4, 2016 at 6:33 am | Permalink

      No doubt there are those here in the UK and within the EU who want to frustrate the referendum result. That much is clear from what they say. Much will depend on who is elected as the next Conservative party leader and thus PM. Will it be someone who wants to take the slow boat to that destination or the fast launch?

    • Nig l
      Posted July 4, 2016 at 6:51 am | Permalink

      No, I know a number of people who think the same. Maybe we have seen too many promises broken to believe it this time!

    • Caterpillar
      Posted July 4, 2016 at 7:00 am | Permalink

      Mick, It’s not just you and the cognitive distraction does have the chance of slowing the economy. The uk needed a leader DC ran away, Mr Gove stabbed BJ and the uk is left with Ms May. Tragicomedy.

    • fedupsoutherner
      Posted July 4, 2016 at 7:52 am | Permalink

      Agree Mick. Why is the government stalling on calling A50. Is it so that they can talk down the economy, scare people into believing that Brexit is bad for the country (they failed before but might succeed now) and then call another referendum or parliament turn down the whole thing because it is ‘in the national interest’. Really? More like in their interest. As you say, the people will really see what parliament and government is all about and finally come to realise that there is actually no democracy. The eyes of the world are upon them.

    • Lindsay McDougall
      Posted July 4, 2016 at 1:26 pm | Permalink

      Why not just repeal the Lisbon Treaty unilaterally? Then there would be no need to invoke Article 50.

      We do, though, need a new Prime Minister (a work in progress) and the appointment of 500 Eurosceptic peers, so that Lord Kinnock and his ilk are sat on hard. That action is next up. Have you got 500 names ready, Mr Redwood?

      • Andy
        Posted July 4, 2016 at 6:25 pm | Permalink

        All you need to do is repeal the European Communities Act of 1972. Thus you are out of the EU.

      • Denis Cooper
        Posted July 5, 2016 at 7:20 am | Permalink

        You would also need to replace a lot of MPs to get it through the Commons, and even then it would not in itself take us out of the EU because we are bound by the EU treaties by virtue of the instruments of ratification on the international plane not by any domestic legislation.

    • roger parkin
      Posted July 4, 2016 at 4:03 pm | Permalink

      No it’s not just you. I have this dreadful feeling every minute of the day (and night). All who have the power must get Andrea in place asap as I believe not only is she the best candidate, a Leaver which is vital but also she will get article 50 invoked quickly.

  2. Jerry
    Posted July 4, 2016 at 5:41 am | Permalink

    Indeed, and surely parliament gave their consent when the Referendum Act was passed, even if the lawyers are correct, why else pass said Act and have all the expense of the ballot if it was merely an opinion poll.

    • APL
      Posted July 4, 2016 at 6:21 am | Permalink

      Jerry: “and surely parliament gave their consent when the Referendum Act was passed ..”

      Oh, I like that.

    • A different Simon
      Posted July 4, 2016 at 10:35 am | Permalink

      Referendums in the UK are not legally binding .

      The single main reason for voting to leave was to restore British sovereignty .

      As someone who voted LEAVE , I believe British sovereignty extends to requiring that issues affecting Britain should be debated in Parliament – not just decided by The Executive .

      Sadly in recent years we’ve ended up with premiers who are poor parliamentarians ; the autocratic Blair(Mandelson?) and slightly lesser offenders Brown and Cameron(Letwin?) .

      Many issues never get scrutiny in Parliament because they are decided by quangos .

      This disdain for parliaments is not confined to the U.K. Obama uses executive orders to avoid having a debate .

      IMHO , the issue to be debated in Parliament is not whether to listen to the people but how to execute the instruction which was given to them by the people .

    • Andy
      Posted July 4, 2016 at 6:33 pm | Permalink

      The lawyers are flying a kite. It is the Crown which signs Treaties, not Parliament. So the Crown can activate Article 50 because it falls within the Prerogative and there is nothing Parliament can do. The argument has been going on in the letters section of The Times.

  3. Cheshire Girl
    Posted July 4, 2016 at 5:55 am | Permalink

    I pity them if they try to overturn the result of the Referendum! It’s typical for the lawyers to get involved. I’m sure that there are plenty on the Remain side who would like to overturn it. The people have spoken, and their will should be respected and implemented. The fact that some don’t like the decision they made is tough luck, in my opinion.

  4. James Barr
    Posted July 4, 2016 at 6:30 am | Permalink

    Lawyers! The expression ‘ambulance chasers’ comes to mind.

  5. CHRISTOPHER HOUSTON
    Posted July 4, 2016 at 6:37 am | Permalink

    The future use of article 50 should not be challenged by lawyers. They should be challenging, if at all, its present use.

  6. Mark B
    Posted July 4, 2016 at 6:54 am | Permalink

    Good morning and happy Independence Day to our cousins across the pond.

    Article 50 says in the first line; “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    The question is, have we met those ‘constitutional requirements’ ? It seems to me that their are those that are trying to have the referendum result annulled on that issue.

    May I remind our kind host that, the Prime Minister, Government and Parliament asked the people to decide on this matter. The people were given clear instructions as to what would happen if they voted to leave the EU. At no time did anyone or Parliament question that the Prime Minister or his successor may not have the right to issue an Article 50 declaration. Are we are now to believe that the people were told a lie ?

    We need to issue an Article 50 asap !

  7. Ian Wragg
    Posted July 4, 2016 at 7:13 am | Permalink

    I see Bliar and Mandleswine are saying you should ignore referendum result. That really would expand UKIP membership.
    The way things are going the Liblabcon will be consigned to the history books at this rate.
    I see they’re trying to dig the dirt on Andrea Leadsom.
    Is there no end to the disgraceful behaviour of MPs.
    Until Article 50 is declared we can all expect an establishment stitch up.

  8. Anthony Makara
    Posted July 4, 2016 at 7:28 am | Permalink

    Already we can see the fudging and an attempt by Theresa May and others to kick the issue into the long grass and wait a couple of years for public opinion to change after the impending economic downturn so that they can call for a Re-Referendum. For this reason we need to see a staunch Brexit Prime Minister who will fast track the process and take us out of the Eurostate. As John rightly states to invite third parties such as Lawyers to proffer their advice is asking for trouble and is wholly undemocratic. We need this situation resolved quickly so that the underlying uncertainty does not spook the markets and discourage investment in the UK. As the BBC and Liberal print media plays the ‘Bregret’ narrative for all its worth in an attempt to mould public opinion, we have to understand that we are fighting against undemocratic forces who want to usurp the will of the people, so we must act with great speed. The people have spoken and want to leave the EU. Why dally?, lets deliver.

  9. Paul
    Posted July 4, 2016 at 7:35 am | Permalink

    I’m not sure the Tories would survive welching on the deal and Labour almost certainly wouldn’t. Those Labour heartlands that voted leave weren’t Tory voters and they will desert them, probably for UKIP, if there is significant backtracking. It happened to some extent in 2015.

    Especially if it sophistry which this so obviously is.

    Parliament might get away with some sort of associate membership which deals with the concerns of the EU but “oh sorry we can’t do it” will bring pitchforks out.

  10. Chip
    Posted July 4, 2016 at 8:00 am | Permalink

    I remember reading an opinion piece (not sure where) saying that even if we won the referendum, it would take 1, probably 2 terms of a Eurosceptic government to disentangle us from the various EU bodies. It seems that may well prove to be true

  11. agricola
    Posted July 4, 2016 at 8:00 am | Permalink

    This is not the time to be distracted by the minutia of Brexit, or to allow Osborne to regain any credibility by letting him tinker on the edge of government.

    The key question is whether the parliamentary conservative party accept the Leave verdict. The apparent popularity of T. May for PM suggests that remain hope to salvage things in mitigation. This will not be accepted by those who voted Leave. T May failed on numerous accounts as Home Secretary, she backed remain hoping to cling to power. To my mind this rules he out.

    Above all she does not have the business experience to head an exit negotiation, she knows nought of wealth creation, and he thoughts on future immigration do not sound encouraging. She will be Cameron in a skirt and high heels. I will observe the next few days with a critical eye.

  12. agricola
    Posted July 4, 2016 at 8:02 am | Permalink

    This is not the time to be distracted by the minutia of Brexit, or to allow Osborne to regain any credibility by letting him tinker on the edge of government.

    The key question is whether the parliamentary conservative party accept the Leave verdict. The apparent popularity of T. May for PM suggests that remain hope to salvage things in mitigation. This will not be accepted by those who voted Leave. T May failed on numerous accounts as Home Secretary, she backed remain hoping to cling to power. To my mind this rules he out.

    Above all she does not have the business experience to head an exit negotiation, she knows nought of wealth creation, and her thoughts on future immigration do not sound encouraging. She will be Cameron in a skirt and high heels. I will observe the next few days with a critical eye.

  13. stred
    Posted July 4, 2016 at 8:05 am | Permalink

    This is exactly what I was thinking when reading about the legal challenge. Parliament makes law. They made the referendum and ministers made clear that the result of the referendum would be respected. If necessary Parliament can clarify the law. Any leader worth their salt would make clear that lawyers will not be allowed to frustrate democracy and make a pile of money in the process.

    It will be a tactic of big business and their Remainiac MP friends to keep the chalenge going for as long as possible, even to the European Court. This could cause an insurrection.

    • stred
      Posted July 4, 2016 at 8:26 am | Permalink

      Now the BBC is saying that someone needs to reassure EU people already here that they will be free to stay. How many more time to they have to listen to Leave ministers and UKIP leaders or read their manifesto. Even non EU or illegal immigrants are only deported in extereme circumstances. How many has Mrs May managed to deport in her stint?

      We already have a points system for immigration for non EU and valuable employees can be recruited. EU citizens with a vital job will still be welcomed, even fruit pickers. Visas for travel will not be necesssary. Anyone will be able to come as a tourist and find a job offer. In the case of students, non EU students are welcome and EU students will be too.

      The SE BBC news had a continental couple who come to work on a strawberry farm saying they would go elsewhere as they now felt unwelcome. They are stirring this poison to gather anti-Brexit sentiment.

      The problem has been that students form a large section of non-EU immigration and many were false and did not go home after finishing. Until the government has a a US style tracking and counting system it will be impossible to prevent overstaying. The present system of estimation by port interviews and not requiring checking in or address reporting is a shambles. And the person in charge is likely to be put in charge of the country! Someone needs to make this clear.

  14. Antisthenes
    Posted July 4, 2016 at 8:06 am | Permalink

    We are in danger of our democracy being hijacked by the lawyers. Supreme courts and the ECJ appear to be to have been very successful in doing this in the USA and the EU. Courts have gone from interpreting the meaning of parliamentary legislation when it is not clear (what they are supposed to do) to rewriting and changing it to fit their political beliefs(which they definitely should not do).

    • Antisthenes
      Posted July 4, 2016 at 8:07 am | Permalink

      I should add that also applied to the ECHR as well.

  15. Ian B
    Posted July 4, 2016 at 8:07 am | Permalink

    I wonder who the “anonymous” people who initiated this legal action are. I’m a bit surprised that one can even bring a legal action while remaining anonymous.

    We do however need constitutional clarification of referendums, since they are now part of our democratic system (there have been several). It seems to me that they naturally override the representatives of the people (Parliament) since the people have voted directly. As such, a referendum might be seen as a direct instruction which must be carried out, perhaps Constitutionally via the Royal Perogative and which Parliament cannot prevent.

    The current “advisory” status is clearly not adequate, particularly in a nation full of sore losers.

  16. Anonymous
    Posted July 4, 2016 at 8:07 am | Permalink

    If the Scottish referendum had been for independence. Would the lawyers have stopped it ? I don’t think so.

    So we can break up our country but we can’t be independent of the EU !

  17. Leslie Singleton
    Posted July 4, 2016 at 8:13 am | Permalink

    Dear John, That accords with what I was taught at my father’s knee but I worry (I wish I were joking) that (not having left yet) we will have the ECJ or somesuch or Juncker or somebody opining on the legality or the minutiae of our Constitution.

  18. Posted July 4, 2016 at 8:15 am | Permalink

    Quite right. Do I detect a taste of opportunism and self promotion in this particular lawyer’s actions?

    Surely not?

  19. Bert Young
    Posted July 4, 2016 at 8:28 am | Permalink

    The laws we – the electorate are governed by , are not always clearly understood , so the role of lawyers when these vagaries occur are no bad thing . Democracy has spoken and we must get on in honouring the vote , if it requires an Act of Parliament then get the wheels in motion .

  20. Denis Cooper
    Posted July 4, 2016 at 8:28 am | Permalink

    Do you know what makes me sick?

    Parliamentarians who don’t give a fig for the sovereignty of their Parliament, our national Parliament, trying to invoke parliamentary sovereignty to neutralise the outcome of a popular vote which would restore Parliament’s freedom to exercise its sovereignty and moreover defend that sovereignty against future assaults.

    It reminds me of the MP who tried to claim immunity from prosecution for fraud by invoking the Bill of Rights 1688, as if he had ever cared two hoots about that.

  21. turboterrier
    Posted July 4, 2016 at 8:29 am | Permalink

    If ever the remainers needed to get their heads from where the sun ain’t shining and get into the real world, today is the day. The EU are looking to let Albania in before 2020 to make up for what they are going to lose with the UK leaving!! You cannot make this up.

    All this on top of there are six European nations whose debts are larger than their economic output, and 16 that have debts larger than the 60 per cent of GDP limit set out in the Maastricht Treaty.

    In 2015 Greece’s public debt stood at 177 per cent of its GDP while Italy was at 132 per cent and Portugal owed 130 per cent of national economic output.
    Thirteen EU nations saw their public debt accelerate at a faster rate than Greece’s over the period, while Germany, Italy, the UK, France and Spain have debts standing at over €1trillion.

    If we are forced to stay within the EU thanks to lawyers hell bent on a good fee and politicians that do not understand the words “You Lost” then I have to agree with Mick’s previous comment about the real cost of betrayal. Hell has no wrath like the electorate scorned.

  22. Oliver
    Posted July 4, 2016 at 8:30 am | Permalink

    My impression is that the likes of Philip Hammond have missed something rather fundamental about the Brexit result.

    Parliament is not able to either bind its successors or give away the people’s sovereignty, which is not in its gift.

    The entire problem derives from the original 1972 failure to grasp this, though constitutional lawyers pointed it out at the time.

    Do they really not understand that they CANNOT agree a trade deal which has terms on Freedom of movement that are not variable at the will of a future parliament?

  23. Denis Cooper
    Posted July 4, 2016 at 8:49 am | Permalink

    You may not need lawyers telling you how to legislate or control government, JR, but you may still get that. Do you recall that during the passage of the European Union Act 2011 Bill Cash objected that as drafted the Explanatory Notes gave the impression that parliamentary sovereignty was a principle of common law?

    http://www.billcashmp.co.uk/index.php?option=com_content&view=article&id=114

    My concern is that the defence of the right of the government to invoke Article 50 TEU without any further process in Parliament is in the hands of people who do not want Article 50 TEU to be invoked, and who would therefore be content to lose the case.

  24. Denis Cooper
    Posted July 4, 2016 at 9:10 am | Permalink

    http://www.express.co.uk/news/uk/685873/Lawyers-referendum-result-legal-bid-block-Brexit-EU-leave

    “The case is being brought by Mishcon de Reya on behalf of a group of unnamed clients understood to be major businesses.

    Kasra Nouroozi, of Mishcon de Reya, said: “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.””

    http://www.telegraph.co.uk/news/2016/07/03/legal-bid-launched-to-stop-brexit-without-parliamentary-debate/

    “The law firm Mishcon de Reya is taking legal steps to ensure Article 50, the two-year process for formally quitting the European Union, is not triggered without an Act of Parliament.

    Acting on behalf of an anonymous group of clients, lawyers have been in correspondence with government counterparts to seek assurance over the process and plan to pursue it through the courts if they are not satisfied.”

    JR, would it be possible for somebody who supports Brexit to join themselves to this case and make sure that the right of the government to invoke Article 50 TEU without further parliamentary process is defended robustly and upheld?

  25. alan jutson
    Posted July 4, 2016 at 9:17 am | Permalink

    The sooner we start the leave process the better for all concerned, just as long as it is all perfectly legal and cannot be challenged by anyone anywhere.

    It worries me that many politicians still want EU Light, and the longer we leave it to Leave the more oxygen these people seem to get from our media.

    I see EU has started talks with Turkey again last week about speeding up their membership to the EU, I have not seen one news paper or TV news programme announcing such. (perhaps I do not view the correct media)

    I see a number of Countries including the USA are now wanting to talk to us about Trade deals, again, little news filtering out on this either.

    I see Mrs May this morning is not as yet going to confirm that all immigrants who are already here legally should have the right to stay. (project fear for them)

    I can only hope we have a Brexit Prime Minister who can put the EXIT plan into operation quickly.

  26. Ivan A
    Posted July 4, 2016 at 9:29 am | Permalink

    Theresa May will be installed as leader, this stitch up wasn’t a mistake. It is cold steel politics at play, and it’s single purpose is to ensure the remain theorists continue with their control and negotiations of the exit. The efforts being put into maintaining control by remainers and Sidelining the leavers, is to exert their own way, and water down any brexit policy.

    Theresa May is not popular HS, Gove is similarly unpopular. To sideline a popular MP – Boris is a Conservative Party error. Likewise the balanced
    Words of Andrea Leadsom. Ignore at your peril, the public will not support May or Gove.

  27. Mark
    Posted July 4, 2016 at 9:48 am | Permalink

    As Denis Cooper has pointed out here Parliament already debated the issue in discussing the referendum bill and agreed with the point that the government decides in relation to article 50, and chose not to legislate otherwise.

  28. Gordon
    Posted July 4, 2016 at 9:58 am | Permalink

    I too am thinking that the 17.5m people who voted to leave the EU are going to be stitched up one way or another. A50 should have been invoked a week ago and as more time passes the less chance there is of it ever being invoked. Waiting until we have a new PM isn’t an option, particularly if it’s TM. Unfortunately as time goes on my overwhelming feeling is that we will never leave the EU. If that comes to pass it looks like UKIP will get 17.5m votes at the next GE and all the MPs who don’t support democracy will be unemployed as would be fitting. It just seems pretty obvious to me that the Government DOESN’T WANT to invoke A50.

    • Ivan
      Posted July 5, 2016 at 6:29 am | Permalink

      Hi Gordon

      These are my thoughts too, the Conservative party in its current form is unpopular, there is an opportunity to change the outer shell, bludgeoning a May lead party to a general election, in the belief they backed a winner, will as you point out lead to a massive public punishment vote.

      There are many up north, sick to the back teeth of repeated re elections of Labour MPs. While they can serve well as local MPs, the dark north is crying out for a party able to listen and include the north in its delivery of services. Hs2 a prime example, and the Northern powerhouse a second. Both these are based no further than Leeds with some lip service it all applies further north. From my home in Northumberland , Leeds is 2 hours drive south to me.

      The Conservative party has a great opportunity here to change its outer shell and embrace a new swath of disconnected voters from the north, but the change must come from their own corridors, there are thousands of votes waiting to be decided on, labour has failed many and continues to project itself as a national joke, I don’t want to vote labour , and I would like to back a pro exit realigned Conservative party , not a rehash of the same faces pretending they have the exit votes at the top of their priority.

      Andrea Leadsom and a new outer shell are what the Conservative party needs, if they can do this then potentially they will corner quite a few of the disaffected northern voters who supported exit. Otherwise we end up with 17.5 million wasted votes on ukip and the greens.

      Thank you for listening.

      IA
      Northumberland

  29. Denis Cooper
    Posted July 4, 2016 at 10:08 am | Permalink

    It’s worth keeping an eye on the continuing discussion here:

    https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/

    Here is an extract from one of the most recent comments, posted today:

    “… More accurately, a reasonably good argument can be made that under EU law the UK has legal obligation to nullify and rerun the referendum. Moreover following from this it may be further argued that the UK could not validly invoke Article 50 on the basis of the 23 June referendum result even if Parliament approved this. Ultimately that would of course be for the CJEU to determine; in the meantime interim relief might be sought.”

    It would be a pertinent question for Cameron, and for each of the candidates to succeed him, whether they would like the EU’s Court of Justice to pronounce upon our national constitution and declare the referendum to be invalid.

  30. lojolondon
    Posted July 4, 2016 at 10:57 am | Permalink

    John, I think we should listen to the EU on this matter – they want to act fast and they said there will be no negotiations until Article 50 is submitted. So let us do it straight away, and get moving!

  31. Lindsay McDougall
    Posted July 4, 2016 at 1:19 pm | Permalink

    At some point in the Brexit process, we are likely to face a Labour ‘no confidence’ motion. There may be enough Conservative pro-European support for it to succeed, forcing a General Election.

    We should be prepared to vote for politicians favouring Brexit. It means voting for someone like Kate Hoey and not Damian Hind. We must hope that UKIP is still around and wins lots of seats from Labour in the north and a limited number from pro-European Conservatives.

    At present, more than 50% of the voters favoured Vote Leave, whereas 75% of MPs favour remain. This imbalance needs to be rectified, and the combination of a Brexit Conservative leader and UKIP winning Labour seats will go some way towards this.

  32. Peter Plaice
    Posted July 4, 2016 at 7:47 pm | Permalink

    Lindsay McDougall makes some very good points & I second them.

  33. Margaret
    Posted July 4, 2016 at 10:11 pm | Permalink

    As usual the will of the people will be blocked and some wonder what leads to civil unrest , anger and anarchy. Lawyers want in it to make money :they do not have justice as a motivating force for good. What is the point of triggering article 50 if we know that parliament will vote against .Parliament will soon realise that neither lawyers nor parliament is in control as people start taking action themselves.
    These powerful people don’t like losing; that is all. I have come across the most unsuitable lawyers and politicians . They can’t even see the bigger picture. Tony Blair says that people are entitled to change their minds. As though he think the Brexiteers made a mistake! Business news tonight is telling us what investors think ! the arrogance goes on and on.

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    John Redwood won a free place at Kent College, Canterbury, He graduated from Magdalen College Oxford, has a DPhil and is a fellow of All Souls College. A businessman by background, he has been a director of NM Rothschild merchant bank and chairman of a quoted industrial PLC.

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