Article 50 - again! Litigation; QMV and Trade agreements

1. Skeleton argument:

Monckton Chambers has published the skeleton argument to be used in the forthcoming High Court hearing by various interested parties (the People's Challenge) - Article 50 litigation: Interested Parties' skeleton argument.  The People’s Challenge IPs invite the Court to declare that the UK’s constitutional arrangements mean that only Parliament can lawfully “decide” to leave the EU for the purposes of Article 50 TEU; and that the Defendant may only “notify” such a decision to the European Council under Article 50(2) TEU once he has been properly authorised to do so by an Act of Parliament.

The skeleton argument

Brexit - A view from afar

Here is a link to an interesting article on Brexit written by Professor Philip A. Joseph of the University of Canterbury, New Zealand -Brexit: A View from afar

The article highlights the lack of preparedness in the British government for the actual outcome of the referendum.  This was condemned as "gross negligence" by the House of Commons Foreign Affairs Committee - Parliament - Absence of Contingency Planning

The article examines the case for and against Parliamentary involvement in the decision to trigger Article 50 and takes the view that - "It would be unthinkable, legally and politically, for the UK to trigger the withdrawal process without Parliament's blessing and involvement."

The "unthinkable" appears to be exactly the present position of the government and therefore, as things stand, the question of whether prerogative power allows Ministers to trigger Article 50 will be heard in the High Court in October.  This is a question on which legal opinion is divided and it has been looked at in previous items on this blog - EU and the UK - Collection of posts - and, in particular, It is Brexit (3) The Role of Parliament under Article 50.

EU - Bratislava and other matters

Updated 20th September

Bratislava:

The European Council held an "informal" meeting in Bratislava this week - see Statement by Donald Tusk. The word "informal" is used because the UK was not invited even though the UK is still a full member of the EU.  The Bratislava meeting resulted in a Declaration and Roadmap in  which it is stated that:

"Bratislava is the beginning of a process. The coming formal European Council meetings will allow for concrete follow up on the themes mentioned here. The Heads of the 27 will meet informally at the beginning of 2017 in Valletta. The March 2017 celebrations of the 60th anniversary of the Rome Treaties will bring together Heads in Rome and will be used to round off the process launched in Bratislava, and set out orientations for our common future together."

Washington Post - "Don't write Europe off" - here Peter Wittig (German Ambassador to the USA) looks at the Bratislava meeting.


Guy Verhofstadt:

House of Lords report on Article 50

13th September 2016 - The House of Lords Constitution Committee has published a report on Article 50  - The invoking of Article 50

The Committee says it would be 'constitutionally inappropriate' and would set 'a disturbing precedent' for the Government to act on the referendum without explicit parliamentary approval.

The report concludes:

"The referendum result was clear. Parliament is now responsible for ensuring that the Government takes forward the complex process of negotiating the UK’s withdrawal from the European Union in a manner that achieves the best possible outcome for the UK as a whole. The focus must now be on how Parliament and the Government will work together to that end. That co-operation should start now. Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process. The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50."

Brexit ~ where are we now?

The EU Referendum found the government distinctly unprepared for the outcome - Brexit.  Considerable uncertainty exists over key areas including the constitutional arrangements within the UK.  All of this has produced a massive amount of comment and several parliamentary committees are deeply immersed in the intricacies of Brexit.  This post ranges over some of the uncertainties and provides links to some of the available material.

Change of government:

Since 23rd June, the United Kingdom has seen the resignation of David Cameron as Prime Minister and the formation of a new government with Theresa May at its helm.  A new and very vital ministerial post in the new government is that of Secretary of State for Exiting the European Union and Mrs May appointed David Davis MP to the role.  

Commons debate 5th September:

New Ministers at the Home Affairs and Justice Committees

The Home Secretary - Rt. Hon Amber Rudd MP - gave evidence to the House of Commons Home Affairs Committee.  The session may be viewed here.

The Secretary of State for Justice and Lord Chancellor gave evidence to the House of Commons Justice Committee.  This session may be viewed here.

On Extremism in Prisons see summary of Ian Acheson's report and the response to it from the Ministry of Justice. 

Brexit questions - this week in Parliament

Updated 7th September:

Parliamentary business resumes on 5th September and a Westminster Hall debate is scheduled on an electronic petition (or e-petition) calling on HM government to implement a rule that if the remain or leave vote is less than 60% based on a turnout of less than 75% there should be another referendum - E petition

This Research Briefing - prepared for the Westminster Hall debate - is interesting  and contains links to additional material on referendums.

It is most unlikely that the debate will result in a second referendum but the debate may enable MPs to record their views on some important matters such as whether Parliament ought to have a role in triggering Article 50 and the role that Parliament ought to play once Article 50 negotiations commence.

See also UK Constitutional Law blog, Kenneth Campbell QC - Constitutional discourse Post-referendum: Where are we, and where are we going next?