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Would Brexit even be legal?

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Top lawyers round on Gove and co’s “illegal” vote leave strategy

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A number of top lawyers have gone public with their concerns about whether a UK exit from the EU on Brexiteers’ terms would even be legal.

As the EU referendum draws ever closer, Dominic Grieve QC — MP and former attorney general — certainly didn’t mince his words when he said that the Brexit route suggested by “those supporting a vote to leave the EU” is not only “illegal”, but also “likely to do our country great harm”.

This is because — he explained in The Times’ law newsletter The Brief — vote leavers have advocated a post-Brexit strategy which falls “outside” the international law rules governing Member State exits, namely article 50 of the Lisbon Treaty. He continued:

It has been a central feature of UK policy… that we respect the terms of the international treaties we sign… So in arguing that the UK should simply tear up our EU treaty obligations by using parliament to enact legislation in breach of them, the Brexiteers, including our lord chancellor, who takes a special oath to uphold the rule of law, are proposing something revolutionary and lawless.

Strong words from Grieve — who also accused vote leavers of producing “ever wilder blueprints that should be rejected for the folly and self-deception they are” — but he’s not alone.

Legal academic and former government lawyer Carl Gardner, who worked on the Lisbon Treaty, has echoed Grieve’s scepticism. He told Legal Cheek:

Vote leave’s published ‘framework’ does indeed involve abandoning our international commitments, something Britain does not do. Those commitments must be stuck to unless and until we have actually left the EU. If another member state unilaterally started denying UK firms and citizens their EU law rights, we wouldn’t take it lying down, or sit obediently in negotiations to a timetable they tried to dictate.

He added:

Vote leave’s framework is for a confrontational, chaotic Brexit not a friendly negotiated one.

Of a similar view is Steve Peers, a professor of law at the University of Essex. He had this to say:

I agree with Grieve. The only plausible legal route to leave the EU is article 50. An EU treaty amendment would be possible too but I don’t see the appeal to the UK of this route. It would also be possible to re-renegotiate EU membership if the EU were willing. But the experience of the first renegotiation suggests that this would be difficult.

Completing our trio of Grieve supporters is Sir Alan Dashwood QC, a barrister at Henderson Chambers. Like Gardner and Peers, he believes that — from a legal point of view — Grieve is “absolutely correct”. He told us that the course of action proposed by the vote leave side “would entail flouting some of the most fundamental” article 50 obligations. This, he says:

[W]ould be utterly at odds with our tradition as an upholder of the rule of law. It is particularly shocking that the proposal should have the support of the present lord chancellor and his immediate predecessor.

Finishing with a stark warning, Dashwood added:

[P]olitically, the proposed action would destroy any possibility of securing an acceptable withdrawal settlement. Our former partners would refuse to talk to us, and the result would be a chaotic exit, with terrible damage to our economy and our international reputation.