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EU law experts say Britain’s “actual withdrawal” needs Parliament’s approval

Basically, triggering Article 50 doesn’t automatically lead to Britain’s withdrawal. It requires a second Act.


Legal opinion drawn up by three of Britain’s most senior EU law experts say that another Act of Parliament is needed for Britain’s “actual withdrawal”. They add that the Article 50 bill only allows the prime minister to give notification to start negotiations. It argues that another Act of Parliament is needed to approve Brexit once the terms are known.

The opinion, referred to as the Three Knights Opinion, was provided by Sir David Edward, a former judge of the European Court of Justice (ECJ); Sir Francis Jacobs, a former Advocate General of the ECJ and Sir Jeremy Lever, a distinguished EU lawyer. The ‘Three Knights’ refer to the three sirs. The two QCs who acted for the People’s Challenge in the Supreme Court case, Helen Mountfield QC and Gerry Facenna QC, also helped to write the opinion, which was commissioned by law firm Bindmans LLP on behalf of the People’s Challenge.

In a statement on the opinion, Bindmans said that “actual withdrawal from the EU will need to be authorised by Parliament in a future Act, once the outcome of the negotiations, and the impact on individual and business rights, is known.”

And in an update sent to the People’s Challenge supporters, the Three Knights Opinion argues that “‘constitutional arrangements’ mean that Article 50 notification is effectively conditional on Parliament subsequently authorising the UK’s exit from the EU.” It further adds that if Parliament rejected the deal once the terms are known in two years time, “the notification could be unilaterally revoked by the UK.”

Here’s a key paragraph in the opinion under the Summary, 2 (vii). You can see the full opinion at bindmans.com.

 

Something for the House of Lords to mull over

This new legal opinion has been sent to peers ahead of the Article 50 bill’s second reading in House of Lords on 20 February. The second reading is the first chance peers will have to debate the bill, which was passed by the House of Commons last week. If the House of Lords successfully add amendments to the bill, it will then need to go back to MPs for approval.

In Bindmans’ statement, the Three Knights Opinion calls on peers to amend the Article 50 bill so that there is “clarity and legal certainty over the constitutional position”. However, it also argues that even without this amendment, “a further Act of Parliament approving Brexit will be needed.”

The question of Article 50’s revocability

The Three Knights Opinion is the closest we’ve come to getting expert legal consideration to Article 50’s revocability. This is a question that was sidestepped in the Supreme Court case because the judgement was based simply on the assumption that Article 50 was irrevocable. The Supreme Court judges did not conclude that it was or wasn’t. As it refers to a an article in an EU treaty, it would have been difficult for them to make a judgement on revocability without referring to the European court. Given the politics surrounding the case, you can understand why there was little motivation to do that.

There is, of course, another court case coming up in the Irish courts being brought by Jolyon Maugham QC on this very question. As we reported previously, the reason he chose to raise it in the Irish courts was to get clarity from the ECJ. The case will no doubt be boosted by the Three Knights Opinion given that it has been provided by EU law experts.

Focussing on a “no deal” scenario

The opinion is also very significant in the case of a “no deal” scenario. So far, the government has shown a lack of desire to even consider that the two year timeframe will be up and there will be no agreement on a new trade deal. This is despite many trade experts saying that a new trade deal will be nigh on impossible to achieve in two years. And as the Economist reports, there is a real danger that talks on a new trade deal could be derailed by talks on the cost of Britain’s withdrawal bill.

As far as the government is concerned, Parliament will have the opportunity to vote on a final deal (on its withdrawal and on a new trade agreement). But that voting against it would mean Britain leaves with no deal. There is no consideration as to what happens if there is no deal for Parliament to even vote on.

However, the Three Knights Opinion argue that in this “no deal” scenario, there is a “constitutional requirement” for the government to “seek legislative consent from Parliament for the UK leaving the EU in the absence of a withdrawal agreement.”

Given that they argue that Article 50 is revocable, this means that whether there is a deal or no deal at the end of negotiations, Britain could still remain in the EU.

People can change their mind. Our mission is to persuade them to

This is all fantastic news for those of us who wish to remain in the EU. It certainly gives us hope that life outside of the EU is not inevitable.

Today, former prime minister Tony Blair gave a speech saying that “the people voted without knowledge of the true terms of Brexit.” He added that “as these terms become clear, it is their right to change their mind.” Anyone who disagrees with this last statement cannot really be interested in the “will of the people” if they’re only interested in it with a cut-off date.

Some Brexiteers will disagree of course. Despite arguing that Brexit must happen because the people willed it, even they can’t argue against Blair’s remarks regarding the Brexit terms. We still don’t know what the terms of Brexit are. It’s likely that we won’t know for another two years. What if, for many people, Brexit doesn’t do what it said it would do?

People do have a right to change their mind. And Blair is also right in saying that for remainers, “our mission is to persuade them to do so.”

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