UK
government faces pre-emptive legal action over Brexit decision
Law
firm says article 50 cannot be triggered without full debate and vote
by parliament
Owen Bowcott Legal
affairs correspondent
A prominent law firm
is taking pre-emptive legal action against the government, following
the EU referendum result, to try to ensure article 50 is not
triggered without an act of parliament.
Acting on behalf of
an anonymous group of clients, solicitors at Mishcon de Reya have
been in contact with government lawyers to seek assurances over the
process, and plan to pursue it through the courts if they are not
satisfied. The law firm has retained the services of senior
constitutional barristers, including Lord Pannick QC and Rhodri
Thompson QC.
Their initiative
relies upon the ambiguous wording of article 50 of the Treaty on
European Union, which sets out how states could leave the EU. The
first clause declares: “Any member state may decide to withdraw
from the Union in accordance with its own constitutional
requirements.”
One of the grounds
of a likely challenge to the referendum is that it is merely advisory
and the royal prerogative cannot be used to undermine parliamentary
statute.
According to Mishcon
de Reya, the decision to trigger article 50 rests with the
representatives of the people under the UK constitution. The firm has
been in correspondence with the government since 27 June “to seek
assurances that the government will uphold the UK constitution and
protect the sovereignty of parliament in invoking article 50”.
Kasra Nouroozi, a
partner at Mishcon de Reya, said: “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.
“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.”
The UK does not have
a formal written constitution, so some lawyers have been dismissive
of the legality of legal intervention, while others have been
pressing for clearer guidance on the constitutional procedure.
Another legal
initiative began last week to seek an opinion on whether the advisory
status of the referendum means that it should be the prime minister
or parliament that ultimately pulls the trigger on article 50.
A tax barrister,
Jolyon Maugham QC, has launched a crowdfunding campaign on
CrowdJustice to pay for advice from constitutional law experts.
“This is an
incredibly important moment in our nation’s history,” Maugham
said. “Everyone – those who voted both leave and remain – is
entitled to be sure of the constitutional basis for removing the UK
from the EU.”
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