Mishcon de Reya moves against early Brexit

The internationally known UK law firm of Mishcon de Reya has moved to block any unconstitutional attempt to trigger the UK’s early departure from the EU.

In a piece by Owen Bowbott, The Guardian newspaper today reports that Mishcon de Reya ‘has retained the services of senior constitutional barristers, including Lord Pannick QC and Rhodri Thompson QC’ to act in this matter.

We do not yet know the opinion of these honourable gentlemen, but we can assume that it will be broadly in line with that of Geoffrey Robertson QC, another leading Constitutional lawyer. Robertson made it clear, in a recent interview with the Business Insider, that ‘Brexit’ would require an Act of Parliament.

Mishcon de Reya.

Reported in the Guardian, 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 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.’

It is truly gratifying to see that Mishcon de Reya is acting on this, since both MPs and large sections of the media appear to still be on a bender.

The Constitutional position is clear.

The UK is a Constitutional monarchy. The clue is in the name — the United Kingdom. It is not a republic. It’s a kingdom.

In a republic, sovereignty resides with the people. They are the ultimate arbiters. In a kingdom, this is anything but the case. The power resides with the monarch.

Now for 800 years, more or less, what is now the UK’s Parliament has been taking powers from the monarch and giving them to itself. Originally, this was to the nobles and barons — the famous Magna Carta.

As the centuries progressed, power was moved from the monarch to the nobles — The House of Lords in Parliament — and then to the ‘Commons’ — the Parliament of ordinary people. Before the UK was even invented, England fought a bloody Civil War over this.

The end of this process is what we have today. All of the monarch’s executive and legislative powers are administered by Parliament, with the House of Commons being by far the more powerful of the two chambers.

The power of the people in the UK is strictly limited to their ability to elect their representatives, who  sit in the House of Commons, at General Elections. These are, since 2011, fixed at 5-yearly intervals. The people are not sovereign.

The Queen in Parliament.

Instead, sovereignty resides in Parliament, in a concept called the ‘Queen in Parliament’, and how Parliament administers that is the decision of the MPs. They make decisions on behalf of the people.

That does not mean that they just follow popular opinion. MPs must weigh every matter presented to them and come to a decision based on their own honest appraisal of it. They do not simply do as the majority wishes. Britain is not a dictatorship of the majority, as Robertson says.

Thus, the very idea of a referendum, as it might be understood in other countries, is alien to the UK. We are very bad at them. This most recent referendum, on the EU, was, like others before, just an opinion poll.

Now I have heard some people saying this is no matter, because the UK is part of the EU by treaty, and the Prime Minister can use a power called Royal Prerogative to make, amend or break treaties, without the approval of Parliament.

This is wishful thinking, because Royal Prerogative cannot be used to undermine an Act of Parliament.

Accession Treaty.

The UK is a part of the EU because it signed the Accession Treaty with the EEC, which was the EU’s predecessor.

So far so good, for the PM’s quick note to Brussels, that doubtless Farage and Gove would like to see happen.

But fortunately there’s a problem. The UK signed the Treaty of Accession as a direct consequence of the European Communities Act 1972.

Ted Heath, who was PM at the time, did not simply sign the Treaty then ask for Parliament’s blessing. He did it properly by passing a Bill through Parliament, which became an Act, which in turn specifically instructed him to go to Brussels and sign it.

Ted Heath was not a thicko; he was one of the great Parliamentarians of the 20th century. The whole EEC membership issue was a political hot potato, with, at the time, the Tory Party almost universally supportive, and the Labour Party the opposite.

Heath knew that if he just signed the Treaty, then Harold Wilson, the Labour leader, would just as likely sign out of it, if he came to power. Joining the EEC was Heath’s crowning glory, the pinnacle of his career. He was taking no chances. He made it as hard as he could for the UK to leave the EEC, by making its membership a function of the European Communities Act 1972.

The Consequences.

The UK’s Accession to t he EEC was a consequence of an Act of Parliament, with all the Constitutional implications that that entails. It is actually mentioned in the 1972 Act, as an update, that this provision was fulfilled. And as we have stated above, Royal Prerogative cannot be used to undermine or annul that Act.

This means the UK cannot resile from the Treaty of Accession without passing a new Bill through Parliament to repeal the 1972 Act.

That must be done before the UK can signal to the EU that it intends to leave. No Article 50 till then. And there is little prospect of such a Bill having an easy ride; even if it passes its Commons stages, it is likely to be rejected by the Lords. As we said last week, this would delay things by around a year; it might not get Royal Assent till 2018, and only at that point could Article 50 be triggered legally.

The exit negotiations with the EU after Article 50 is triggered will take at least two years. So, we are looking at the UK’s actual Brexit — in the event of it actually happening — occurring around the time of the 2020 General Election. I don’t really see either of the major parties in Westminster having the stomach for that.

Parliament should not be mocked

Furthermore, the fact that the UK does not have Constitution of the kind that France or the USA do cannot help the Brexiters. British Constitution is based on a spiders’-web of related documents, Treaties, Acts of Parliament and conventions. And all of these enshrine exactly the same principle as is formally stated in the 1707 Articles of Union, which brought the UK into being and is thus the foundation of its Constitution:  Parliament is sovereign. Parliament should not be mocked.

It is very good news indeed that Mishcon de Reya has acted to ensure that EU Citizens will not be stripped of their rights by opportunist and, frankly, ignorant, politicians. Parliament should already have moved on this, but Members are too busy throwing each other out of windows, it appears.

I am also delighted that colleagues in the Fourth Estate have finally decided to plug their brains back in and ask more serious questions. I might get some work done.

If you enjoyed this, please read the follow-up article HERE


Also published on Medium.

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