A lawyer, David Wolchover, has prepared a legal argument (HERE) that suggests there are good grounds for believing the Article 50 notification was not legal. Let me say at the outset I am not a lawyer so my opinion means nothing but the arguments he puts forward look compelling. If I can summarise, the essence of it is this.
1. Guidance for the 2015 EU Referendum Act (EURA) says the outcome of the vote would only be advisory and not binding on the government.
2. The Gina Miller Article 50 case contains several references to the advisory nature of EURA and that no constitutional or legislative decision had been taken at that time. I don't believe this is contentious in law and is now accepted on both sides.
3. The Supreme Court ruling (see Miller, at para.122).was that parliament had to pass primary legislation enacted by The Queen to give legislative effect to the referendum. Government lawyers showed they understood this in a written submission HERE - paragraph 14 d: "In other words, if the UK is to withdraw from the EU, Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form".
4.The Article 50 bill could easily have had one extra sentence saying for example, “The United Kingdom shall withdraw from the European Union” and through this, parliament would then have made the formal legislative decision. But for some reason no such wording was included.
5. The bill simply authorised the government to invoke Article 50 but says nothing about the actual decision itself, which legislative authority made it and when,
6. It follows therefore that in the absence of that formal legislative decision by parliament no decision has actually been taken. Mrs May's letter triggering Article 50 is therefore not valid
He argues it is inconceivable that the government could not have been unaware of the need for a formal decision by parliament but we do not know what legal advice the cabinet were given. In conclusion he thinks there is a good case for criminal charges against the PM and other ministers.
The first question I think is does it matter? And the answer surely is nobody will know unless it is tested in court. The next question is who would make a complaint? I think it needs to be a person or body with some legal standing and clout. Finally, which court would try it? Could it be the Supreme Court or even the ECJ? This may come back to haunt the government one day.
The first question I think is does it matter? And the answer surely is nobody will know unless it is tested in court. The next question is who would make a complaint? I think it needs to be a person or body with some legal standing and clout. Finally, which court would try it? Could it be the Supreme Court or even the ECJ? This may come back to haunt the government one day.
