Pro-EU supporters outside the High Court in London, which has been hearing the Article 50 case © Getty Images
When the UK makes a notification under Article 50 that it intends to withdraw from the EU there is the legal question of whether that notification can be revoked unilaterally.
Nobody knows the answer.
If it is revocable then the UK and EU will not be bound to go through with the exercise if conditions or preferences change: the UK can put the revolver down.
But if it is irrevocable then the UK will be out in two years or so, even if no exit deal has been agreed: once the revolver is fired the bullet cannot be stopped. Read more
David Davis, Brexit minister © Getty Images
On Monday, Prime Minister Theresa May gave a speech in Copenhagen. She mentioned “free trade” three times but the single market not at all. In Westminster, the Brexit minister David Davis gave a statement and answered questions in the House of Commons, where he was at ease with the UK not being a member of the single market. In one answer he said:
“we will seek to get the most open, barrier-free market that we can. That will be as good as a single market.”
Mr Davis deftly dealt with the distinction between a “hard” and a “soft” Brexit by saying the distinction did not exist:
“the words hard and soft Brexit are designed to deceive. They are not meaningful in any way. We are talking about the best possible trade access.”
Mr Davis also set out his utopian vision of Brexit, where there is no downside and only upsides:
I highlighted three of the four main aims that we are after. One is to regain control of our borders. Another is to get back control of our laws. The one I did not list was our aim to keep our justice and security arrangements at least as strong as they are. Finally, and most importantly in this context, the United Kingdom must aim to maintain the best possible open access to European markets and vice versa. If we can achieve all that, there will be no downside to Brexit at all, and considerable upsides.
Theresa May, UK prime minister © Getty Images
The UK government is seeking to do as much of Brexit as possible without involving parliament. It does not want parliament to make the formal decision to leave the EU or even decide what type of Brexit the country should seek, and it does not want to keep parliament informed about the negotiations. The government is getting away with this because of the summer referendum, which, in fact, had no binding effect in law.
The Brexit referendum was a plebiscite, and plebiscites are paradoxical things. On the surface they are exercises in direct democracy, allowing the people to determine political questions for themselves. But in substance, they provide the executive with the means to circumvent and frustrate those other organs of the state that would otherwise provide checks and balances. Plebiscites seem liberal but they can be used for illiberal ends. Read more
Theresa May addresses the Conservative party conference © Getty Images
Sunday was a good day for Leave campaigners, perhaps the best day they have had since the referendum result.
The announcement of two things by the UK prime minister Theresa May at the Conservative party conference brought good cheer to the Brexiters. On social media and elsewhere there was triumphalism — even gloating — as it seemed more real than before that Brexit is going to happen. Read more
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Imagine a British politician in a friendly restaurant somewhere on the continent. He or she decides what they want from a menu that is conveniently also in English. They summon the attentive waiter or waitress, who in an obliging and smiley manner takes the British politician’s order. That is, of course, given in English. Everybody nods happily.
This is how many UK politicians and pundits seem to believe the post-Brexit international trade deals are going to work, both with the EU and with the rest of the world. All it needs is for the British to turn up and choose what they want, click their fingers and the transaction can be quickly made with the grateful locals. Read more
The British prime minister Theresa May greets Donald Tusk, European Council president, in Downing Street © Getty Images
I went for a few days to Brussels to research for a book on Brexit. I met and listened (on a “background basis”) to politicians and officials, journalists and pundits, Brits and non-Brits. It seemed a good moment to gain a snapshot of what was being said and thought a few weeks after the referendum result but before views and attitudes settled and hardened. Read more
Britain's justice secretary Liz Truss
When Elizabeth Truss was appointed Lord Chancellor and justice secretary there was considerable disquiet. The first holder of the combined roles Lord Falconer went so far to call the appointment “unlawful” and inappropriate. Others like Joshua Rozenberg (and myself) reserved judgment. After all, natural justice requires everyone to be assessed on their merits. Read more
What has to be in the exit agreement between the UK and the EU? What is the narrowest legal basis on which Brexit can be done? The process under Article 50 (of the EU treaty) envisages that there would be such an agreement for a departing member state. Article 50(2) provides:
From the wording of this provision, the exit agreement should include “arrangements for [the member state's] withdrawal” and should “take account” of the “framework for [the member state's] future relationship” with the EU. These statements, however, are not that informative So, let us start with a basic question: is an exit agreement even needed? Or could the UK just walk away? Read more
Theresa May, UK prime minister © Getty Images
Wanting something to happen is never enough. More than mere desire is needed. This simple truth is obvious in the current state of Brexit policy in the UK.
The discrepancy between will and capability is not new. In the days following the Brexit referendum vote, the Conservative minister Rory Stewart made the distinction: there would be no shortage of political will, he averred, but the important question was whether there would be the political capability. That is still the key question. Read more
Chevening House in Kent, formerly the official residence of the foreign secretary but Boris Johnson will now have to share it with two other leading Leavers, Liam Fox, international trade secretary, and David Davis, Brexit secretary © Getty Images
In the days after the Brexit vote, a favourite taunt of Leavers was to tell those who were warning of the difficulties of Brexit that such critics were “in denial” and were indulging in “wishful thinking”. Brexit meant Brexit and it was now inevitable. But it is now evident that it is the Brexiteers who are denying the challenges of reality and wishfully thinking away the problems they now face. Read more
The UK’s future may rest on this text of fewer than 300 words and how they are interpreted Read more
David Davis, the new cabinet minister responsible for Brexit © Getty Images
The attention of the public and the media has been grabbed by the appointment by the new prime minister, Theresa May, of Boris Johnson as foreign secretary. But it is another of her appointments, that of David Davis as the cabinet minister responsible for Brexit, which is more important for those interested in how and when (or if) the UK leaves the EU.
The choice of Mr Davis is a remarkable one in some ways. A sincere civil libertarian, as well as a pro-Brexit campaigner, he is one of a group of claimants suing the UK government at the European Court of Justice to enforce EU law on an allegedly non-compliant UK in respect of personal data rights. This case — which is reliant on the very charter of fundamental rights loathed by many in his own party — has already seen a decision of the high court saying an act of parliament was incompatible with EU law (though this was not upheld on appeal, it was referred to the ECJ instead). Read more
The Houses of Parliament © Getty Images
It is one thing to assert “Brexit is Brexit” and quite another to make it come about. Any departure of the UK from the EU is not going to happen by mere incantation of a grand phrase. There also has to be some legal means. So what are the legal means by which Brexit can happen?
Some say it can be done by the prime minister (with or without cabinet) as part of the so-called “royal prerogative” – the legal fiction that a minister may exercise the remaining powers of the crown which have not been limited by statute. The prime minister can, for example, enter into treaties on the basis of the royal prerogative.
Others say it can only be by an Act of Parliament — and these people are willing to litigate the point. The argument here is that there is legislation such as the European Communities Act which give individuals rights under EU law so it is not open to the executive to frustrate or circumvent this statute. Primary legislation would therefore be needed. Read more
The established order in any society can sometimes be wrong-footed, but they are usually not wrong-footed for long. Genuine revolutionaries know this, and they act quickly to take full advantage of any temporary advantage. Soon, however, the established order will regroup and refocus, with renewed determination.
The generally pro-EU political class in the United Kingdom has certainly had a fright. They were not expecting to lose the EU referendum. British political leaders were so confident of victory they even casually said that the people’s decision would be implemented “straight away”. And now there is a crisis, but only for a while. Read more
Various EU politicians can demand what they want but they may as well be whistling Read more
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Not all problems have solutions. And the political problem now caused by the decisive Leave vote in the UK does not lend itself to any straightforward solution in practice.
Part of this is because there was never a good objective reason for the referendum in practice, and part is because the referendum did not have any legal effect. It was always an unnecessary referendum with no legal consequences. In legal terms, it was a glorified opinion poll. Read more
The referendum on Britain’s EU membership is unnecessary. There is no objective reason for it to take place: no new treaty or proposed treaty amendment. It is merely a vote on whether the U.K. continues to be part of an international organisation of which it has been a member for over forty years. There is no more reason to have a referendum on this issue in June 2016 than in June 2015 or June 2017.
The referendum is also not binding as a matter of law. As set out in my earlier post, there is no legal consequence contingent on the result of the vote. The government could have legislated for an immediate legal effect but it chose not to do so. As such the referendum is advisory and not mandatory. The key decision by the government in the event of a “Leave” vote is whether to invoke the (seemingly) irreversible exit procedure in Article 50, and the government can make the relevant notification at a time of its choosing (subject perhaps to a parliamentary vote) or even not make such a notification at all. Read more
In June 2006, 10 years ago this month, David Cameron, then leader of the opposition, promised to replace the Human Rights Act of 1998 with a “British bill of rights” when he and the Conservatives obtained power.
Ten years later the Human Rights Act is still the law of the land, even if it now seems Mr Cameron — prime minister since 2010 — may not be in office much longer. The Human Rights Act is as safe (or as unsafe) as it has ever been, and it looks as though the act will survive the premiership of Mr Cameron. Read more
What follows any referendum vote next week for the United Kingdom to leave the EU? From a legal perspective, the immediate consequence is simple: nothing will happen.
The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation. Read more
The third painting in the series, 'The Humours of an Election' by William Hogarth, 1755. Granger, NYC/Alamy.
The UK Conservative party is facing serious allegations and extensive investigations in respect of their campaign expenses at last year’s general election. Read more