Why lawyers are in a tizzy over Article 50

Hayley Kirton
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Groups of lawyers are getting ready to challenge the way in which Article 50 is triggered, but what's all the fuss about? (Source: Getty)

Legal eagles have been making front page news after both solicitors and barristers have launched challenges to the way the government might take the UK out of the EU.

Mishcon de Reya last week revealed that it was waiting in the wings to start a legal battle should the government trigger Article 50 without an appropriate Act of Parliament in place.

Then, on Monday, a group of over 1,000 barristers, led by Cornerstone Barrister's Philip Kolvin QC, unveiled an open letter to the Prime Minister, calling for not only an Act of Parliament to be put in place but also for a free vote of MPs on the issue and a Royal Commission, or similar independent body, to pick over the consequences of leaving the EU in advance.

Why is this even an issue?

The gist of the argument is that, if the government were to invoke Article 50 without legislation in place, it would be overruling the power of parliament and ultimately sidestepping the wishes of the public who elected the MPs.

On the other side of the legal coin is the argument that the right to trigger Article 50 is one of Royal Prerogative, meaning that legally no involvement of parliament is required. This argument stems from the EU membership rules being vested in treaties, not Acts of Parliament. Oliver Letwin, chancellor of the Duchy of Lancaster, also stated earlier this month that he had been advised by the government's lawyer that the power was a prerogative one.

However, in a letter to the government's legal department, law firm Bindmans argued that removing rights by using Article 50 would also effectively alter rights put in place by the European Communities Act 1972 – the legislation which provides for the incorporation of EU law into domestic law. The lawyers contest that any alteration to this Act can only be done using primary legislation and would, therefore, require input from parliament.

Is this an attempt to overthrow the vote?

Although critics have slammed the actions for seeming more political than legal, both the statement from Mishcon de Reya and the barristers' letter stressed that this was not an attempt to go behind the back of those who had voted for Brexit. Rather, they emphasised their concerns that legal process was properly followed.

What guidance do we have on whether an Act of Parliament is needed to leave the EU?

Not a great deal. Article 50 itself says that member states who wish to leave the European Union should do so "in accordance with its own constitutional requirements".

However, an article written by pro-Leave group Lawyers for Britain points to a case in 1994 which unsuccessfully challenged the ratification of the Maastricht Treaty. In this case, one of the judges rejected an argument that the European Communities Act 1972 implied a restriction to the exercise of Royal Prerogative.

If it can be successfully argued that this case also applies to the UK leaving the EU, then it follows that no Act of Parliament is necessary.

Who's right?

Just as many have commented that it's tricky to determine what an EU exit deal will look like, as nobody has ever had to draw one up before, the same can be said for how it will be legally achieved. This legal issue is likely to rumble on for some time to come.

"In our view it does appear that Article 50 requires an Act of Parliament rather than just an exercise of the prerogative power," said Andrew Cheung, a partner at Dentons. "But whatever decision is reached by the government on this issue is likely to be subject to challenge of one sort or another."

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