The legal clamour against the result of the EU referendum is growing, with over 1,000 barristers branding the outcome “not legally binding” and demanding that leaving the EU be subject to an Act of Parliament.
The barristers are writing to Prime Minister David Cameron this week to call for MPs to be given a free vote on any such Act and for the creation of a Royal Commission, or other equivalent independent body, to examine the consequences of triggering Article 50, the mechanism by which a member state starts the process of leaving the EU.
The authors of the letter state that it is of “the utmost importance” that the risks of triggering Article 50 are closely examined, claiming that the referendum result “was influenced by misrepresentations of fact and promises that could not be delivered”.
However, the letter also stresses that the vote to leave must be “acknowledged” - even though they are of the legal opinion that the result was non-binding.
The letter, which will also be sent to every MP, comes after London law firm Mishcon de Reya said it was preparing to launch legal action on behalf of an unnamed group of clients should Article 50 be triggered without a relevant Act of Parliament in place.
“Parliament is sovereign and the guardian of our democracy,” said Philip Kolvin QC, who co-ordinated the letter. “MPs are elected to exercise their best judgement on the basis of objective evidence, to safeguard the interests of the country and their constituents for this and future generations. At this time of profound constitutional, political and possibly social and economic crisis, we look to them to fulfil the responsibility placed upon them.”
Aidan O’Neill QC, who specialises in constitutional and EU law, added: “If the UK is to survive the result of this vote, a consensus needs to be built up about the way forward. Fully informed discussions and deliberations within and between our parliaments is the only proper constitutional way to achieve this. Precipitate or unilateral action by the UK government to trigger Article 50 of the Lisbon Treaty will simply further divide us.”
However, Leave supporter and member of the influential Treasury Select Committee, Jacob Rees-Mogg, told City A.M. that he suspected the motivations for the letter were “probably political rather than legal”, pointing out that there was already case law to suggest that no new Act of Parliament was needed. He added that highlighting issues with the promises made by the Leave campaign ultimately damaged their legal argument rather than strengthened it.
Meanwhile, Tory MP and chair of the Public Administration and Constitutional Affairs Committee, Bernard Jenkin, told City A.M. the barristers’ actions were “laughable,” adding: “If the result had been 52-48 the other way, what would they have said to a bunch of lawyers saying that the law was somehow invalid and parliament didn’t have a right to act accordingly?”
Martin Howe QC, from pro-Leave group Lawyers for Britain, added: “There can be little doubt that this is not a serious attempt to enhance the workings of parliamentary democracy but an attempt to delay and frustrate the implementation of the decision of the British people for years in the hope that it can somehow be reversed.”
Commenting on the letter, home secretary and Tory leadership hopeful Theresa May said: “Brexit means Brexit and we’re going to make a success of it. If I’m Prime Minister, there will be no second referendum.”