There is no legal precedent for what lies aheadby Paul Bowen / August 18, 2016 / Leave a comment
Given the social, political, economic and constitutional significance of triggering Article 50 of the Lisbon Treaty, which starts the process of withdrawal from the European Union, it is comforting that Theresa May has indicated that she will not do so until 2017 at the earliest. On the day after the referendum, Jeremy Corbyn, the Labour leader, said that Article 50 should be invoked immediately. But had then-Prime Minister David Cameron followed this advice he would have set in motion a process for which the government was unprepared. He might also have been acting unlawfully. Here’s why.
Starting the Article 50 process involves two steps. First, a member state must make the decision to withdraw from the EU “in accordance with its own constitutional requirements.” Second, that decision must be notified to the EU Council. However, if a decision is not taken in accordance with these “constitutional requirements,” then the notification will be unlawful. What, then, are the constitutional requirements of the UK? A fierce debate has erupted around this question, to which there is no ready answer.
The government has stated that it will decide the matter. But legal proceedings have been issued asserting that the decision can only be authorised by parliament. One high-profile claim has been brought by the city law firm Mishcon de Reya on behalf of a number of British citizens. These include Gina Miller, founder of investment management group SCM Private, who is represented by David Pannick QC, the doyen of constitutional law. Another challenge is being co-ordinated by public law expert John Halford of Bindmans. Others may emerge, although the fact that abuse has been directed at the existing claimants may discourage this. Miller and the other claimants should be praised for sticking their heads above the parapet to bring this case, described by Lord Justice Leveson at a hearing on 19th July as of “enormous constitutional significance.” But are they right?
In most democracies, determining the constitutional requirements to make or break international treaties is relatively straightforward: the procedure is set out in a written constitution. But the UK does not have one of those, as such. Our constitution is to be found in disparate…