The Observer reports: Theresa May is under pressure to publish secret legal advice that is believed to state that parliament could still stop Brexit before the end of March 2019 if MPs judge that a change of mind is in the national interest. The move comes as concern grows that exit talks with Brussels are heading for disaster.
The calls for the prime minister to reveal advice from the country’s top legal experts follow government statements declaring that Brexit is now unstoppable, and that MPs will have to choose between whatever deal is on offer next year – even if it is a bad one – or no deal at all.
Disquiet has been growing among pro-remain MPs, and within the legal profession and business community, about what is becoming known as the government’s “kamikaze” approach. Ministers insist that stopping Brexit is not an option, as the British people made their decision in last year’s referendum, and the article 50 process is now under way, however damaging the consequences might turn out to be when negotiations are concluded. [Continue reading…]
Jessica Simor, QC, writes: Article 50 provides for the notification – not of withdrawal but of an “intention” to withdraw. In law, an “intention” is not a binding commitment; it can be changed or withdrawn. Article 50(5) is, moreover, clear that it is only after a member state has left that it has to reapply to join. Had the drafters intended that once a notification had taken place, a member state would have to request readmission (or seek the consent of the other member states to stay), then article 50(5) would have referred not just to the position following withdrawal, but also following notification. Such an interpretation is in line with the object and purpose of article 50.
The EU’s competences are based on the consent of its member states. The authority to increase or reduce these competences is within their hands. Article 50 is an example of the principles of consent and conferral; it confirms the right of a member state to withdraw from the union. In the words of the German federal constitutional court in the Lisbon case, the “right to withdraw underlines the member states’ sovereignty… If a member state can withdraw based on a decision made on its own responsibility, the process of European integration is not irreversible”. The purpose of article 50 is therefore to confirm in express terms the member states’ ability to withdraw from the EU and to lay down the procedures for doing so. By confirming the right of states to withdraw from the EU treaties, article 50 maintains the right of states to change their mind on withdrawal, as provided for in article 68 of the Vienna convention on the law of treaties.
I have today sent a freedom of information request to the prime minister seeking disclosure of the legal advice and asking her to waive any privilege and release it in the greater public interest. It is important that this advice is made available to the British public and its representatives in parliament as soon as possible. At any point from now, but certainly when parliament is finally faced with the likely reality; a bad deal or no deal at all, it must act in the interests of the people and order the prime minister to revoke the notification. It can do this whether or not the government says so; parliament is sovereign – in constitutional theory at least, it controls the executive; not the other way round. [Continue reading…]