Legal dream team fights to make Brexit conditional on parliamentary backing

Big guns from Mishcon de Reya, Blackstone, Matrix and Monckton take aim at referendum decision

parliament

Some of London’s leading public and EU law specialists are launching a last gasp legal bid to preserve Britain’s European Union membership following the vote to leave in last month’s referendum.

Hotshot solicitors and barristers from Mishcon de Reya, Blackstone, Matrix and Monckton Chambers have formed a dream team to argue that the decision to trigger Article 50 of the Treaty of European Union — the legal process for withdrawal from the EU — rests with parliament under the UK’s unwritten constitution.

The group — which is made up of Mishcon partner Kasra Nouroozi, Blackstone’s David Pannick QC and Tom Hickman, Matrix’s Rhodri Thompson QC and Monckton’s Anneli Howard — is being instructed by several unnamed businesses. It will go head to head with the government, which argues that it has authority to push the Article 50 button in the wake of the referendum result.

In a statement issued on Sunday evening, Nouroozi explained:

We must ensure that the Government follows the correct process to have legal certainty and protect the UK Constitution and the sovereignty of Parliament in these unprecedented circumstances. 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.

He continued:

We must make sure this is done properly for the benefit of all UK citizens. Article 50 simply cannot be invoked without a full debate and vote in Parliament. Everyone in Britain needs the Government to apply the correct constitutional process and allow Parliament to fulfil its democratic duty which is to take into account the results of the Referendum along with other factors and make the ultimate decision.

Nouroozi’s words echo the position outlined by Blackstone’s Pannick in a recent article for The Times (£) newspaper. Hickman has also written about the constitutional issues surrounding Brexit in a widely read blog post.

With the Tory leadership candidates split on when to activate Article 50 — Theresa May and Michael Gove want to hold off until next year, but Andrea Leadsom and Liam Fox are keen to start formal exit negotiations in autumn — the legal challenge might have a major role to play in the Brexit saga.

Could the lawyers save the day?

74 Comments

Anonymous

Businesses and lawyers trying to block or impede the will of the people. It sums up why the country has become so crap.

(38)(83)
Anonymous

The will of the people to absolutely fuck everyone over is hardly good democracy and shouldn’t be encouraged. Cameron made a mistake in allowing the question to goto the people.

(73)(25)
Democracy

So instead of a democracy you feel that a dictatorship is ideal? Or is it just that in some situations you think people should be lead by dictatorship but at other times they should get to be a democracy?

But how will we know when we, as people, should be dictated to or get to vote on an issue? Should we vote on that or just be told when.

Should we divide our country into those with an IQ above X and IQ below X? and only those with above that number can vote?

If the above sounds like a good idea to you then you need to re-evaluate your life and give yourself a good hard slap.

For better or for worse we live in a democracy. Its not the best process, but in my opinion its the best one anyone has thought of so far. Live with it, or move country.

(39)(38)
Anonymous

If they really wanted to they should have voted on it in the House of Commons and the House of Commons alone. You know, where the democratically elected ministers represent the various interests of both their constituents and the UK as a whole.

“If the above sounds like a good idea to you then you need to re-evaluate your life and give yourself a good hard slap.”

Do I get a vote on whether I get slapped or not? Or is this the single issue that you think I shouldn’t have a vote in?

(19)(8)
Ian Hamlett

“Do I get a vote on whether I get slapped or not? Or is this the single issue that you think I shouldn’t have a vote in?”

No. You have the right not to be slapped in the face. If someone wanted to remove that right, you would get an opportunity to vote them into power with that as part of their manifesto, or you would get the opportunity to vote in a referendum.

After reading your post, I would fully support that change to your rights.

Some people only seem to think democracy is a good idea when things go their way. These people don’t believe in democracy at all. All this talk of authoritarianism troubles me.

(8)(6)
Brian Morgan

They already did vote on it { The Commons} when they passed the Referendum Act 2015.. This amounts to being held and bound by the result of the vote.. there is no provision in the Act for any kind of review of the result and it could be reasonably argued that the result of the vote automatically triggered Article 50

(0)(3)
Anonymous

We need a law 101 course if I have to see “the referendum = democracy” again.

IT’S CALLED PARLIAMENT!!! THAT IS YOUR DEMOCRACY.

(33)(6)
Tyrion

Whilst I firmly believe the result of the referendum should be respected even though i voted remain, some people fail to understand what parliamentary democracy means. They keep throwing the word democracy around like majoritarian decision making is always such a good thing. There is a reason why every constitution has checks and balances, even the US constitution was created with significant checks with the Congress constituting both a house to represent the people and one to represent the States. Majorities can restrict the rights of minorities, it has happened so much in history. So simply saying majority wins is not a good enough answer.

It is interesting that the same people who say the EU is not democratic and that no one knows the MEPs and Commissioners, are equally ignorant of our own constitution and couldn’t in most cases tell you who their MP is.

(29)(4)
anon

Democratic vote in a referendum is a direct democratic expression of the people

(1)(3)
Anonymous

We’ve got a democratically elected Parliament, how is that a dictatorship – idiot !

I can certainly see why it was in your interest for people with low IQ’s to vote !

(17)(3)
Anonymous

Fvck you. The will of the people will change you pedant.

(2)(14)
Panderson

You need to research the word democracy. If it were based on democracy then th referendum would have been only seen as advisory and gone to vote at Parliament based on the elected constituents.

(0)(0)
Interloper

Wasn’t really a mistake though was it ? Was a calculated move to try and hold onto power and not leak voters or further MPs (cf Carswell) to UKIP whilst also appeasing the nutjob ultra wing of his party.

A gutless move from an utterly spineless so-called leader unprepared to assert himself and stand up to aforementioned nutjobs. It worked for him though eh (until it came back to bite him on the aris)….

(14)(6)
Anonymous

I agree with what you are saying, but it was certainly a mistake on the basis that Cameron never intended nor did he want this to happen.

(7)(1)
Interloper

Oh, yeah I’m sure he didn’t intend it to happen (nor expected it would). Unfortunately Cameron turns people off with consummate ease and every time I he showed up on television flapping his hands about earnestly, he probably managed to lose votes.

Many people seemed to have thought this was some sort of protest vote against him – he should have recognised and done something about that earliest….

Too late now … 🙁

(3)(3)
anon

Not a protest vote against Cameron.

It was a vote against the EU. Mainly – uncontrolled immigration from the EU (people are not xenophobic, they thought that a more ethical and fair system was the one currently in place for non EU immigrants – ie points based that ensures you have a job before you work here, and therefore financially stable, barred from entry based on criminal records RIP Alice gross and he’s has Raithatha – but for freedom of movement and the lack of checks this entails you would not have died) – there should be one points based system for all that is selective and based on the needs of the economy. This is not unreasonable.

Second – sovereignty.

Third – cost.

Brexit was not a protest vote, it was not about personality politics – Cameron or Corbyn (people are not cult followers), but this outcome was based on genuine, reasonable concerns with a supranational organisation.

(3)(3)
Anonymous

Sir or Madam,

If that were the case, there would have been no need for the subterfuge which was abundant. Equally if it were about what you have expressed, there would not be a public outpouring of “buyer’s remorse”.

Secondly, sovereignty is understandable, but in the current global and european dynamic, it is part of a push/pull dichotomy; that cannot be reasonably discounted.

Thirdly, I am unsure of what you mean by costs, but that myth has thoroughly been debunked, especially if you combine all of the monies allocated to the UK which must include the Government as well as various municipalities/councils and protected groups.

Brexit was very much and definitively a protest vote, the electorate so much as demonstrated and expressed this. And this outcome, which should stay as a majority of the people have spoken was based on fear mongering and playing up on xenophobia… we need to call it what it is.

(3)(2)
Pantman

It’s probably worth thinking about the fact that a lot of people in the UK would restore capital punishment. But that our parliament has decided otherwise. This BBC story says 48% back capital punishment (in 2015, this was the first time the percentage favouring capital punishment had dropped below 50%):

http://www.bbc.co.uk/news/uk-32061822

With the kind of propaganda the LEAVE campaign generated it seems implausible to suggest that they couldn’t boost that to over 50% and win a referendum on the issue.

I think all here would agree that this would not be a way forward for the UK.

(7)(2)
Ian Hamlett

That’s great. Now, if one of our democratically elected representatives calls for a referendum on capital punishment, and says they will implement the decision, they should definitely do that.

Until then, it has no place in this discussion.

(0)(2)
anon

There was no referendum on capital punishment. A BBC online opinion poll is not a referendum.

What you are saying does not apply here.

(2)(1)
anon

I agree.

This is disgusting. This not an issue of “following process”, no further vote from politicians is required. This is a deliberate manipulation of the outcome of the vote and to pervert and undermine the exit process as a whole. This is clear no matter what positive terms they try to put their case.

I hope the people revolt.

economic cooperation is okay. Political and legal centralisation under far removed technocrats is dangerous (and unnecessary).Attempts to manipulate a democratic vote is wrong, unfair and deeply concerning.

(1)(4)
immigrant

In my opinion there are just 2 types of Brexit voters:
– A small wealthy minority which was well informed and had an idea how to make even more money on post Brexit recession.
– The (dim/lazy) rest. So people that have fallen for the lies told by likes of Farage and Johnson, and hopped for the extra money for NHS, reduction of immigration etc, that couldn’t be bothered to actively seek facts and are now surprised by what is happening; and also those that used the referendum to protest against everything that they are unhappy about -the current situation/politics – without thinking about the consequences of that decision.

Farage and Johnson done ‘their bit’ and now trying to escape the consequences, as they have no plan what to do next and probably hoping to reappear once we go through the worst and the situation improves – just to blame everyone else for all that isn’t right. I am and will be to blame for everything, I am sure.

(6)(2)
Anonymous

In my opinion there are two types of Remain voters. There are those thoughtful and sensible Remainers who were disappointed with the referendum result but respect it and will get on with making the best of a UK outside the EU. I’m in this group.

And there are those who are too stupid to accept the significance of the result, their continuing protests being an expression of their small-mindedness and inability to understand that other people hold different views and values. Members of this second group are very common in the dim but vocal leftish middle-class.

(3)(0)
Nathaniel Mathews

As to the 2 types of Brexit voter-you appear to have forgotten a 3rd category of Leave voter- the out and out racists. While it has been said that it is wrong to assume that 52% of the voters fall into this category (and I can only hope that is right) it’s a prety fair bet that the racists who voted voted leave.

(0)(0)
Lauren

The will of the people is not expressed by 37% of the electorate some of whom now regret their vote or claim they did not mean it.

Until Brexit has popular backing it should not go ahead.

A referendum is informative but not definitive. One based on lies and without adequate thresholds to avoid accidental Brexit lacks full legitimacy.

If Brexit is the will of the people it will survive being put through a proper parliamentary process.

(0)(1)
Anonymous

Could the lawyers save the day?

No.

Next question…

(22)(6)
Anonymous

If it is in fact unlawful for PM to trigger Art. 50 without debate and if brexiters truly love our democracy and country as they claim, they will follow our laws without protest. The same goes for remainers if it turns out that it is lawful for PM to trigger Art. 50 without debate. We have law and lawyers to address exactly these kinds of issues.

(16)(5)
Pantman

They don’t love our democracy, they despise it and they despise the law that holds back their full ambitions. As posted previously, Brexiteers were advocating literally tearing up the European Communities Act (and the Fixed Term Parliament Act) – no negotiations, no art 50.

Utter contempt for the people and the law.

(7)(1)
material evidence

what law dick head! Have yet to see reference to legislation and/or case law on the matter! Banging on about a lot of shit!

(3)(1)
Anonymous

I am genuinely interested as to whether this group is actually planning to bring a “legal challenge” or whether it is planning to simply set out its position to government. Struggling to see how they could challenge a decision that nobody has made yet. Has anyone actually seen the answer to this? The press has been pretty vague as to what is actually happening.

(5)(1)
Anonymous

Seems to me that they are just clarifying who is doing what. Although, by the sounds of it they’d like to create as many barriers to activating Art 50 so a debate and vote in the Commons would be a good start. Legislation would be even better, and the Lords frustrating matters would be quite good for them.

(5)(0)
Lord Harley of Parking Ticket Appeals

Isn’t it an executive action to trigger Art 50 and not a legislative one? On that basis, there is no need for parliament to approve it.

(5)(3)
Ps_aitch

If you accept that the opinion poll we just had is a decision, in line with our constitution, then it is executive, but it isn’t, so the legislature has to repeal the European communities act 1972 to enable A50. This is a predicate for a huge amount of law and won’t be easy to undo.

(3)(1)
Anonymous

Rubbish; Article 50 is a process that leads to the UK ceasing to be a Member State, in which event it would indeed be correct to repeal the ECA 1972. However, until the UK ceases to be a Member State it remains bound by its Treaty obligations and thus the provision made in the Act for EU law to be binding in the UK remains essential for now.

(6)(0)
Anonymous

Waste of money.

I wanted to remain, but accept the decision of the 52%.

Democracy innit.

(12)(12)
Anonymous

For once legal cheek covers something relatively interesting and of use to people.

Just a shame the article is written terribly.

(4)(0)
Not Amused

It’s really starting to cast new light on the whole Peter Smith affair. *Is* it all down to Peter Smith? Or is David Pannick now just as mad?

(6)(5)
Anonymous

I thin the most important question to come out of this article is whether a “hotshot” lawyer is better than a “top” lawyer?

(6)(0)
Jones Day TY1

All fascinating stuff but I was wondering, you see, does anybody know when Jones Day is due to increase the NQ pay?

(4)(4)
Sarcybum

Good old JD is waiting for Addleshaw to increase pay and – like many other city firms – it will then follow suit.

(3)(1)
Anonymous

If you [i]really[/i] worked at JD you’d know that NQ salary has been raised to MC levels – £85k (and unlike MC that’s before bonus).

(0)(3)
JD NQ

I work there and you’re full of shit son, absolutely no raises whatsoever and bonuses are equally non-existent.

(3)(2)
Partner exits

Hah, typical JonesDay lawyer, full of hot air and always clamouring for more money.

Tell me, where’s the value in JD’s London shop?

(0)(1)
Anonymous

The government were elected on a manifesto that included a referendum. They carried out that referendum and one of the highest turnouts ever voted to leave. This is democracy in action and obviously some people win and some people lose. Yes, it is non-binding and it probably won’t happen because no politician would want to be the one pulling the trigger. However, to try to block it will intensify the divide between the haves and have-nots.

We already have some of the worst wealth division in recent history and many of those who voted leave will have been those who have not benefited from the EU and UK policy. Overruling their votes because others have done quite nicely from it will just drive more people into the arms of extremist parties – and I don’t count UKIP as extremist.

Smug political and business elites insinuating that they know best is what got us into this situation. More of it that won’t make things any better, it’ll just get more divided.

Realistically, article 50 will get delayed and delayed for more and more reasons (elections, QMV, assembling negotiating teams, etc. etc.), so before people start thinking about reinforcing their disdain for the voter, perhaps they should think about how they can negotiate a deal with the EU. Ignore the grandstanding, the EU are desperate for a deal to be reached, Italy’s banks are about to implode and other EU exits are brewing.

(8)(0)
material evidence

I think you have submitted your. Fuking essay to the wrong website!

(0)(3)
Isn't their legal basis not even correct?

I thought Professor Mark Elliott, who I back on constitutional issues, clearly says that triggering Article 50 is a matter for the PM and does not require Parliament?

(8)(1)
Anonymous

Other legal commentators, some with similar stature to the great Prof, disagree. So we don’t know.

(2)(1)
material evidence

Lets have a fucking referendum on the matter of which legal argument holds true! If we dont like the answer then we can have another referendum! Fuck off you fucking weak, idiotic and brainwashed bremaiers! Getting fucking tired of you all! Bloody frauds!

(0)(2)
Anonymous

IIt is an uncomfortable position to be in to advocate for the disregard of that referendum result to leave the European Union, however the point to be made is that the decision to ignore this referendum result, which anyway has no legal basis, can be legitimized to usurp democracy where it is in the national interest to do so.

In this case we have to acknowledge that the United Kingdom is a kingdom compromised of four countries, England and Wales of who voted to leave, and Scotland and Northern Ireland of who voted to remain within the EU

That it is true that the majority vote of the kingdom was to brexit, it nonetheless did not carry in all four countries, and herein lies the problem, the referendum question was a constitutional question.

The constitutional question been asked is whether we as a kingdom continue to cede (by perception, since EU laws and regulations are good law in the UK because the European Communities Act 1972 says as such and as well has also been incorporated into the Scotland Act , Wales Act and Northern Ireland Act), some of our parliamentary sovereignty to the EU, in exchange for among others some economic advantages, as well as some disadvantages

To my way of thinking each country in the kingdom of the United Kingdom has an equal say on whether to continue to have those powers ceded to the EU, not because I think that but because those above acts say as such and therefore for the referendum question to carry would require the four countries to agree in the same way, and where this is not possible that the status quo must remain, that is to say the decision of the people in 1975 referendum to remain in the what was then the EEC, remains good.

I cannot see that the result can be a valid result where those countries that is Scotland and Northern Ireland voted one way and achieve the opposite of what they voted for, it does not seem democratic, legal or fair and further I could be certain that if I were Scottish or Northern Irish that I would find it it unpalatable to have imposed upon me the will of another country.

Further I also cannot accept that the electorate could foresee or intended that the decision to leave the EU could lead to at worse the break up of the UK as we know today.

Thus seemingly because the UK parliament has decided to devolve those powers to those other countries it therefore must be that they have an equal say on whether to remain or exit from the EU for otherwise to be the case would be to say that the majority vote in Scotland and Northern Ireland would count for nothing.

Therefore it must be that constitutionally speaking this referendum result did not pass in each four countries unanimously and therefore in the national interest there are legitimate reasons for disregarding the result.

(6)(6)
material evidence

Still submitting you fucking essays to the wrong website!

(0)(2)
Scep Tick

How can this go to Court? What dispute or question of law is raised? The Government has not made a decision so there is nothing to challenge. This is publicity grabbing pure and simple.

(4)(2)
Anonymous

Write to ask the Cabinet Office to formally confirm in writing that it will seek to legislate for Art.50 triggering mechanism (either through primary legislation, order made under s.2(2) EC Act 1972 or some other appropriate legislative vehicle).

Assuming Cabinet Office confirms it will not, the “decision” (i.e. not to) becomes judicially reviewable.

(3)(1)
Anonymous

To all those carping on with this tired old ‘referendum =/= democracy’ bilge, please remember that our parliamentary representatives voted by a margin of 6 to 1 in favour of having the referendum.

Respect the result – it’s the democratic thing to do.

(5)(2)
Anonymous

As one who was firmly in the Remain camp, I ask why have the referendum if we were not going to rely on the result? That it is non-binding is to a degree besides the point and more importantly an after-thought, as the voters thought it was binding.

David Cameron resigned after the vote causing uncertainty, if he remained as Prime Minister, he would have the task of deciding when to invoke Article 50. That alone implies that it is the PM’s decision.

Also didn’t Parliament already have its vote, when they decided to have the referendum? They in their supreme wisdom and sovereignty objectively decided the man on the Clapham Omnibus decide the fate of the Country. This objective man, rightly or wrongly has spoken.

Whether someone wants to bring an action against the propaganda used to entice the public is another thing entirely.

(4)(1)
Anonymous

I suppose the answer to this is that Parliament, when passing the Referendum Act 2015, noted that there was no statutory requirement to enforce the answer to the question that was posed. If it was their intention to be tied to the outcome, this could have been accomplished in the statute.

I think it’s morally reprehensible to not implement the outcome of a referendum, but the legal obligation is murky at best. Makes for fascinating discussion for constitutional lawyers though.

(2)(0)
Anonymous

Alternatively, which must be right constitutionally, if Parliament via the vehicle of the Referendum Act 2015 did not make provision for statutory requirement to enforce the answer to the question, then due to this absent provision, by inference Parliament has already spoken that they need not intervene.

For if it were so, then parliament, in their infinite wisdom would have commanded such by such a provision.

Therefore morally and constitutionally, Parliament has not been usurped and in fact has already spoken on the subject and the will of the people no matter how you feel about must stand, absent another legal remedy

(0)(1)
anon

Why have a referendum if we are not going to rely on the result? – well said

(0)(1)
Gladiatrix

Hopefully one or both of the Leave campaigns will report Mishcons to the SRA and stop them from wasting public money on this nonsense

(1)(2)
Anonymous

How can ”hotshot” and ”mishcon” be exist in the same sentence? More like plebs charging over half a grand an hour instruct top barristers charging less and try to take the credit for it. Madness.

(5)(1)
David De Reya

Maybe you should learn to use proper grammar before dissing others.

(1)(1)
Jones Day brah

Hahahaha.

I’m just laughing at your pitiful firm, that’s all.

(0)(1)
Epic fail

“Big guns from Mishcon de Reya”

Dat dere quality oxymoron.

(4)(1)
Andrew Park

Nothing but politically motivated nuisance making by disgruntled Remainers. They themselves are an offence against democracy.

(4)(3)
Anonymous

If this succeeded you would have social disorder on a quite unimaginable scale.

(2)(3)
Anarchy in the UK

Bring it on I say, at least we’ll get a chance to flog some crusty old geezers!

#remainercommandos

(0)(1)
material evidence

Waste of time and money. You all act like weak bitches who have no self-confidence! All those clowns demoing against brexit… the same type who messed up the Labour party by voting Corbin hahahah!

(0)(2)
Anonymous

So we spend many millions of pounds to campaign for an in/out referendum, politicians on both sides tell us lie after lie, and now our over paid legal profession tell us the referendum is not legally binding. I feel a revolution is needed, it’s the only way to rid our country of the establishment.

(0)(0)

Comments are closed.