The ‘Three Knights Opinion’ on Brexit: A response

Bindmans LLP have published a fascinating opinion which argues that the EU (Notification of Withdrawal) Bill that is presently before Parliament does not authorise Brexit, and that a further Act of Parliament will be required if Brexit is to occur in a way that is lawful as a matter of UK law. The opinion is written by Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC, Helen Mountfield QC and Gerry Facenna QC. The authors of what Bindmans have dubbed the ‘Three Knights Opinion’ — including those who are not knights — are leading authorities … Continue reading The ‘Three Knights Opinion’ on Brexit: A response

Deal or no deal: Government ‘concedes’ parliamentary vote on terms of Brexit

Parliament is currently considering the European Union (Notification of Withdrawal) Bill. If enacted, it will authorise the Prime Minister to trigger Article 50, thus beginning the process whereby the UK will leave the EU. The Bill, as drafted by the Government, is very short indeed: the Government is evidently hopeful that Parliament will accept a Bill doing the bare minimum required by the Miller case, in which the Supreme Court held that legislation was necessary. But the Government has now accepted, in the course of today’s debate in the House of Commons, that there will be a vote in Parliament on any deal negotiated by the UK … Continue reading Deal or no deal: Government ‘concedes’ parliamentary vote on terms of Brexit

Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

To say that the Miller case has stimulated a wide-ranging constitutional debate would be to engage in rash understatement. The pages of the UK Constitutional Law Association Blog, in particular, are replete with posts that examine the issues raised by the case from a rich variety of perspectives and which advance a broad spectrum of views. As the debate has progressed, I have increasingly found myself wondering why the questions raised by the case have invited such strongly contrasting answers from those who have contributed to the discussion. Indeed, a particularly striking feature of the debate is the way in … Continue reading Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

‘Brexit in the High Court’ — BBC Radio 4, Law in Action, 8 November 2016

Following the judgment of the High Court in R (Miller) v Secretary of State for Exiting the European Union (about which I have written briefly here, and in more detail, with Hayley Hooper, here), this week’s edition of BBC Radio 4’s Law in Action examines the implications of the decision and broader questions about the next steps that are likely to taken in relation to Brexit. The programme was recorded in Trinity College, Cambridge, a few days ago. During the programme, presenter Joshua Rozenberg, my colleague Professor Catharine Barnard and I discuss a range of Brexit-related matters, including the significance of the Miller judgment, the prospects for … Continue reading ‘Brexit in the High Court’ — BBC Radio 4, Law in Action, 8 November 2016

Courts, democracy and Brexit: Some home truths

There are three aspects of the High Court’s ruling in Miller — the implication of which is that Article 50 cannot be triggered without an Act of Parliament — that are significant. The first is whether the High Court was right as a matter of law. I have already written briefly about the legal merits of the judgment, and will comment further on that — in a piece I am writing with a colleague — in due course. The second is the political implications of the judgment for the future of the Brexit process, assuming it is not overturned by … Continue reading Courts, democracy and Brexit: Some home truths

Cambridge University Brexit Week Talk: The Process of Leaving the EU

A couple of weeks ago, I gave a talk as part of the University of Cambridge’s Brexit Week — a series of events organised by my colleagues Professor Catherine Barnard and Dr Amy Ludlow. The event at which I spoke was entitled ‘The Politics and Process of Leaving the EU’. Professor David Runciman, the head of the University’s Department of Politics, spoke on the politics of Brexit, while I addressed the legal (as well as the political) aspects of the withdrawal process. In my talk, I focussed on the ‘before’, ‘during’ and ‘after’ of Brexit by examining questions about the triggering of the Article … Continue reading Cambridge University Brexit Week Talk: The Process of Leaving the EU

On the sidelining of Parliament: The Brexit Secretary’s statement to the Commons

David Davis MP, the Secretary of State for Exiting the European Union, has made a statement to the House of Commons concerning the Brexit process. He has done so amid mounting cross-party concerns about the involvement of Parliament in that process — concerns that his statement are likely to do little to assuage. To the extent that it has any substance, the Secretary of State’s statement concentrates on the Great Repeal Bill. I have explained in another post why the title of that Bill is hopelessly misleading. The only thing the Bill will repeal is the European Communities Act 1972. Its repeal, which … Continue reading On the sidelining of Parliament: The Brexit Secretary’s statement to the Commons

Brexit | Constitutional legislation, fundamental rights and Article 50

I have written before about whether triggering the formal Brexit process under Article 50 of the  Treaty on European Union requires legislation. My view is that, as a matter of law, the arguments around whether legislation is needed or whether the prerogative can be used are finely balanced, but that the better view is that legislation is not required. I have also argued that, in policy terms, the case for parliamentary involvement in or a referendum on any eventual Brexit deal is extremely strong. Two recent posts on the UK Constitutional Law Association Blog return to the question of whether … Continue reading Brexit | Constitutional legislation, fundamental rights and Article 50

Brexit | Should there, and does there have to, be a second referendum?

The vacuity of the debate that preceded the referendum on EU membership is exceeded only by the emptiness of result that the referendum subsequently yielded. A slim majority of those who voted may have expressed a desire to “leave”, but what that means is such an open question as to render the referendum outcome largely meaningless. If ever the aphorism that “the devil is in the detail” were appropriate to a situation, then Brexit is it. One of the fundamental flaws in the UK’s referendum on EU membership is that while those who voted “remain” could be reasonably certain of … Continue reading Brexit | Should there, and does there have to, be a second referendum?

Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate

In his resignation statement, David Cameron took it to be the case that triggering the UK’s formal withdrawal from the EU under Article 50 of the Treaty on European Union is a matter for the Prime Minister (or, more specifically, the next Prime Minister). Article 50, about which I have written in another post, provides that once a Member State has decided to withdraw from the EU, it must communicate its intention to leave to the European Council, thereby triggering a two-year negotiation period. A great deal has been written recently about when — and even whether — the UK should … Continue reading Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate