Today, the London-based law firm Mishcon de Reya announced that any attempt to trigger the EU’s Article 50 procedure for withdrawal from the EU must be sanctioned by an act of Parliament. Not to do this would be unlawful, the lawyers argue. The referendum provided a majority result for leaving the EU but in itself does not contain the legal mandate to implement the result. Given that we joined the EU via an act of Parliament (the European Communities Act, 1972), a withdrawal must also be governed by a new act of Parliament to repeal the 1972 act, they state. In other words, David Cameron’s successor cannot just sign a piece of paper to start the two-year withdrawal process. The decision to do this must be debated in Parliament and voted into law by a majority vote.
BBC prediction of how MPs would vote the day before the EU Referendum took place
Now, I’m no expert on constitutional law and thus cannot comment on the basis of Mishcon de Reya’s legal challenge but what I know is this: most MPs, approximately 75% according to the BBC’s prediction above, were expected to vote Remain in the EU so if the need to repeal the 1972 act is proven and the motion comes before the house, there is a distinct possibility that the act will not be passed and thus the will of the people not implemented.
So, here are the ifs:
If the need to repeal the 1972 act is justified and thus presented to Parliament for approval and if Theresa May (a Remain voter) becomes the new Conservative Prime Minister and if she allows a free vote by her party members (as opposed to a party whip vote) and if Labour’s leader Jeremy Corbyn, or his replacement, also allows a free vote and if MPs vote according either to (a) conscience or (b) how their constituencies voted or (c) the party whip if a free vote is denied, then who is to say what’ll happen but, here’s the next if: if the motion to repeal the 1972 act is not passed and thus Parliament goes against the wishes of the majority as expressed through the Referendum then what happens? Civil war: The Leavers versus the Remainers? Twenty-first century Roundheads versus Cavaliers?
In the meantime, senior officials in Brussels such as Jean-Claude Juncker (ex-President of the European Commission) and others are calling for an early start to Article 50 plus we have people marching through the streets of London calling for yet another EU Referendum (but really just admitting that they don’t like democracy) and there is massive uncertainty about what the Scottish politicians will do given that the Remain vote was very strong in Scotland.
It’s a “nice mess” and I cannot believe that nobody within the government’s legal team asked the question “What happens if the EU Referendum is in favour of Leave?” before the Referendum was called. Surely someone somewhere must have queried the legal and constitutional implications of a Brexit majority result?
It seems not.