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When the EU Referendum debates and discussions were going on this year, the widespread understanding among the British public was that, should Leave win, the Prime Minister could trigger Article 50 to start the separation from the European Union.

David Cameron implied as much in his resignation speech on June 24.

In other words, it did not require a vote in Parliament.

Now that Leave have won, elite Remainers say that invoking Article 50 requires a separate Act of Parliament, i.e. a vote in the House of Commons.

Hmm.

Remainers were out in force at the weekend.

There was a Remain protest in London with at least 30,000 protesters taking part.

Then former Deputy Prime Minister (2010-2015) Nick Clegg, a Liberal Democrat, added an additional layer of procedure, saying there should be a fresh election before Article 50 is triggered. The Guardian reports (emphases mine):

Under Clegg’s scenario, MPs after an election would scrutinise the government’s specific plan to ensure it was legal and workable, and crucially, article 50 should only be triggered following a vote of consent from MPs. He points out that many top legal experts have disputed the notion that the prime minister can invoke article 50 on her or his own.

“Finally, the definitive, negotiated terms both of our exit from, and our future relationship with, the EU must then be put back to parliament for a vote of consent,” argues Clegg.

Conveniently, legal experts are already in place, no doubt hired by the Remain elite. Mishcon de Reya is the firm’s name. They are highly expensive and out of the reach of most Britons except for multi-millionaires and billionaires.

The Guardian tells us:

A prominent law firm is taking pre-emptive legal action against the government, following the EU referendum result, to try to ensure article 50 is not triggered without an act of parliament.

Acting on behalf of an anonymous group of clients, solicitors at Mishcon de Reya have been in contact with government lawyers to seek assurances over the process, and plan to pursue it through the courts if they are not satisfied. The law firm has retained the services of senior constitutional barristers, including Lord Pannick QC and Rhodri Thompson QC.

Their initiative relies upon the ambiguous wording of article 50 of the Treaty on European Union, which sets out how states could leave the EU. The first clause declares: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.”

It would be interesting to find out more about their proposed case, because Article 50 is EU — not British — legislation.

It is odd that this is coming up now, in light of a Leave result. It seems that hiring Mishcon de Reya is a Remain tactic to overturn or push aside the Leave result. Worse, it may be establishing conditions that do not need to exist in order for us to begin ‘divorce proceedings’.

In February 2016, MP Philip Hammond — the Secretary of State for Foreign and Commonwealth Affairs — led a debate on the EU Referendum. The question of a parliamentary vote arose.

Note that Scotland’s Alex Salmond said the Foreign Secretary — not the Prime Minister — invokes Article 50.

Excerpts from Hansard follow:

Alex Salmond (Gordon) (SNP)

The Foreign Secretary invokes article 50. Before notification was given under article 50, given that the referendum is an advisory one in terms of the constitution, would there be a vote in Parliament? Would there also be a vote in the Scottish Parliament, given the impact on devolved competencies under the Sewel convention?

Mr Hammond

The Government’s position is that the referendum is an advisory one, but the Government will regard themselves as being bound by the decision of the referendum and will proceed with serving an article 50 notice. My understanding is that that is a matter for the Government of the United Kingdom, but if there are any consequential considerations, they will be dealt with in accordance with the proper constitutional arrangements that have been laid down.

The next question seemed to concern revoking the Communities Act of 1972, UK legislation which was necessary in order for Britain to become a member of the EU:

Mr Bernard Jenkin (Harwich and North Essex) (Con)

I rather concur with the right hon. Member for Gordon (Alex Salmond), because I think that before the Government could move to any action as a consequence of the referendum, it would be essential for Parliament to debate the matter and for the Government to obtain consent from Parliament.

On the question of what happens if we leave, may I enlighten the Foreign Secretary? First, there is no obligation to go for article 50. Secondly, we would be taking back control over our borders, our laws and the £10 billion a year net that we give to the European Union. It would buy us plenty of options, which the Government seem determined to prevent us even from discussing.

Repealing the Communities Act would leave us in no man’s land and would immediately cut us off not only from the EU but from other countries with whom we trade. Whereas Article 50 keeps us in the EU and maintains our trade agreements with non-EU countries during a negotiated divorce period, revoking the Communities Act would leave us with nothing. As we are not WTO members because we are in the EU, we would have huge problems. Mr Hammond explained:

My hon. Friend raises again the suggestion that there is no need to treat an exit vote as triggering a notice under article 50. He seems to suggest that there is some other way of doing it. He raised the question on Monday and I looked into it, because he caught my imagination, but I have to tell him that that is not the opinion of the experts inside Government and the legal experts to whom I have talked. We are bound by the treaty until such time as we have left the European Union. The treaty is a document of international law, and Ministers are obliged under the terms of the ministerial code to comply with international law at all times.

The UK’s current access to the single market would cease if we left the EU, and our trading agreements with 53 countries around the world would lapse. It is impossible to predict with any certainty what the market response would be, but it is inconceivable that the disruption would not have an immediate and negative effect on jobs, on business investment, on economic growth and on the pound. Those who advocate exit from the EU will need to address those consequences—the substantive consequences, of the kind that the British people will be most focused on—in the weeks and months of debate to come …

Alex Salmond

… I asked the Foreign Secretary earlier about the circumstances that would arise if the vote went for out and when article 50 would be invoked, and I have been reading the Library paper in preparation on exactly that issue. The Library paper suggests that the likely formulation would be that there would be a vote in this Chamber before the Government invoked the position, but the Government could say it was an Executive decision and just go ahead anyway. What it then goes on to argue is of great importance.

Philip Hammond

I wish to clarify something. I answered the right hon. Gentleman on this point earlier, but I have taken advice since. It is the Government’s position that if the electorate give a clear decision in this referendum to leave, the Government will proceed to serve an article 50 notice; there will be no need for a further process in this House.

In his blog, Conservative MP John Redwood foresees a combination of the two approaches. Whatever happens, we do not need lawyers getting involved:

Parliament effectively control the prerogative powers of government. The government can send a letter triggering Article 50 without asking Parliament. Like all such deeds Parliament can review or vote down any action of the government. If the government uses powers in ways Parliament does not like Parliament can pass a vote of no confidence. We do not need lawyers telling us how to legislate or control government.

It is understandable that Leavers, from voters to government campaigners, are concerned by the controversy surrounding Article 50 or the possibility that the result could be ignored.

The Spectator‘s readers have been mulling this over. One wrote:

Someone on another platform (one of my family actually) just said to me the following:

We have a precedent – the 1974 referendum on whether to stay in was binding on the government of the day, so this referendum is also binding on the government. Can’t have it both ways.

He went on to say:

Article 50 is part of the Lisbon treaty, which is part of UK law, so that shouldn’t need a separate Act of Parliament to enact and the referendum should be binding on the government by precedent, so I’m not sure how it’s going to win. I think this is a time-wasting strategy – tie it all up in the courts, so that a general election can be called before a decision is made, in the hope that a new government won’t be bound by the referendum of the previous one.

The EU could try to force our hand by invoking sanctions under Article 7, inferring that Britain’s instability is affecting the rest of the member countries as it is not conducive to the values of the EU. Most EU leaders understand that a Leave vote requires time to for us to develop an exit strategy. Some, like France’s Alain Juppé, a conservative French MP and presidential candidate in 2017, would like us to invoke Article 50 sooner rather than later:

[Brexit] does not mean we are going to punish the UK. We need to find ways to co-operate, to find a solution to have the UK in the European market, one way or another – whether that is part of the European Economic Area or something else.

They can’t say yes, no, maybe. Now they must draw the conclusions of the vote. When you get divorced, you don’t stay in the same house. It’s not a question of days, but it has to be fast.

Philip Hammond made a statement today criticising Mishcon de Reya:

He says the challenge would fail because a decision had been made and this was ‘essentially a political question’.

With regard to the next Prime Minister, the first round of votes in the Conservative Party leader race take place on Tuesday, July 5. One candidate will be eliminated then, a second by the end of the week, subsequently followed by a third. This would then leave two remaining candidates to set out their stalls more fully before a grassroots party member postal vote takes place, which ends on September 8. The result will be announced the following day.

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