Brexit (9) - Legal and Constitutional Requirements

Following the result of the EU referendum held on 23rd June, the country is about to embark on a process of leaving the EU. In these difficult moments, it is crucial that this process is in accordance with legal and constitutional requirements. The constitutional framework governing Brexit needs to be laid out clearly, and with precision, for the benefit of both the people and government officials.

The UCL Faculty of Laws hosted a public event on the constitutional implications of Brexit.  The session may be viewed via Youtube - Brexit: Legal and Constitutional requirements

Constitutional and European law experts from UCL discussed what the legal constraints are on the process of leaving the European Union, and how they might influence the process of negotiations and the UK’s future relations with the EU.

Questions that were addressed included:

The Supreme Court of the UK ~ next selections for appointment

The Supreme Court of the United Kingdom was created by the Constitutional Reform Act 2005 (CRA).

The appointment of judges to the court is a complex process set out in the CRA and amended by the Crime and Courts Act 2013 section 20.   One of the aims of the 2013 Act was to "facilitate greater diversity."  A helpful summary of the appointments process is here.


Forthcoming retirements:

Over the next few years the following retirements apply:

• Lord Toulson  -   22 September 2016
• Lord Neuberger  -   10 January 2018
• Lord Clarke  -  13 May 2018
• Lord Mance  -  6 June 2018
• Lord Hughes  -  11 August 2018
• Lord Sumption  -  9 December 2018

The Supreme Court has announced

It is Brexit (8) - Points of interest

A)  Two weeks after the 52% to 48% referendum result in favour of the UK leaving the EU, the legal debate continues apace.  I have argued - and still do so - in favour of Parliamentary involvement in the process.  The UK is a parliamentary democracy and the referendum decision is NOT legally a decision taken by the United Kingdom as a State to withdraw.  It could certainly become a decision of the UK if it were to be formally endorsed by Parliament by way of an Act - please see the earlier post - It is Brexit (3).  Others have strongly argued that Parliament does not have to be involved in the process of giving notice under Article 50 since Ministers already have the prerogative power, in foreign affairs, to do this - (there are links in It is Brexit 3).

We know

Iraq Inquiry Report

The Iraq Inquiry report was issued today (6th July).  The report has an Executive Summary and 12 Volumes.  The Inquiry Chairman - Sir John Chilcot - made this statement immediately prior to the publication of the report.

The Inquiry did not express a view on whether military action was legal - (previous post).   Sir John noted that this could only be resolved by a properly constituted and internationally recognised court but the inquiry did conclude that "the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory."

Here is a link to Volume 5 of the report where the legal advice is considered - Advice on the legal basis for military action, November 2002 to March 2003

There will undoubtedly be a massive amount of commentary on this report and I will add links below as they become available.

Chilcot ~ legality of the war?

Addendum 5th July

The Iraq Inquiry report will be published on Wednesday 6th July.   The inquiry was instigated by Gordon Brown (Prime Minister 27th June 2007 to 11th May 2010) and was officially launched on 30th July 2009.  The Chairman, Sir John Chilcot, said:

"Our terms of reference are very broad, but the essential points, as set out by the Prime Minister and agreed by the House of Commons, are that this is an Inquiry by a committee of Privy Counsellors. It will consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath. We will therefore be considering the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country."

It is Brexit (7) - Role of Parliament in Brexit decision and notification to EU

The question of what role Parliament should play in relation to the United Kingdom making a "decision" to withdraw from the EU was discussed in an earlier post - It is Brexit (3) - where I both advanced the view that an Act of Parliament was required and also included a list of links to arguments for and against that proposition.  It has been announced that legal steps are being taken to try to secure the involvement of Parliament - see Mishcon de Reya - Article 50 process on Brexit faces legal challange to ensure parliamentary approval.   The Mishcon de Reya statement informs us that the action is being taken 'on behalf of a group of clients' but they are not named.

It is Brexit (6) - Parliamentary material

Update 26th July:

A week has elapsed since the result of the referendum was declared.  Rarely has there been greater proof of the statement that "a week is a long time in politics."  These documents issued by Parliament will be of interest :

a)  Brexit: what happens next? - This Commons Library briefing paper looks at the immediate consequences of the vote and some of the longer term implications. This paper considers various questions about UK withdrawal from the EU and what is likely to happen in the coming weeks and months. The issues include the method of leaving the EU, continuing parliamentary scrutiny of EU business and the withdrawal negotiations, and the implications of Brexit for Scotland and Gibraltar.

b) Brexit: how does the Article 50 process work? - This Commons Library briefing paper looks at the process of withdrawing from the EU under Article 50 of the Treaty on European Union. There could be a complex and difficult negotiation lasting two years or more, or the UK could leave without settling its exit terms or its future relationship with the EU.