Can a delay in invoking Article 50 of the Lisbon treaty save Britain from what many now see as the impending disaster of Brexit? Analysts increasingly seem convinced that, if there’s a will to somehow reverse what in their view clearly has been a foolhardy, primitive and suicidal referendum vote to end Britain’s membership of the European Union, Brexit can indeed be thrown out as a result obtained largely by politicians’ deception and stealth.
Nor is procrastination over activating Article 50 of the treaty the only way of delaying the UK’s departure from the union, say the analysts. Just as Brexit enthusiasts are looking into ways of expediting Britain’s separation from the EU, other constitutional experts, lawyers, politicians and diplomats committed to Britain remaining within the EU are debating and exploring ways in which the potential effects of the 23 June vote can be reversed.
Article 50 states that a government planning to leave the EU shall notify the EU in line with its national constitutional procedures. Interpretations abound on what those constitutional procedures entail. A growing constituency of experts believes parliamentary approval will be needed before Britain can leave the EU.
European lawyers, in evidence to the House of Lords select committees, have said it would be possible for the UK to revoke a notification to withdraw, according to The Guardian. It is legally the preserve of the nation planning to quit the EU to trigger the departure process.”There are differing legal views on whether a prime minister is required to consult parliament before triggering article 50, or whether instead it is a matter of the royal prerogative,” said the newspaper, citing the example of Britain, a constitutional monarchy.
“I do not believe that Brexit will happen,” Gideon Rachmann wrote in Financial Times. “There will be howls of rage, but why should extremists on both sides dictate how the story ends?” he asked.
Can the law stop Brexit? asks the BBC in a legal analysis of the vote. “As the dust settles after the UK vote to leave the EU, lawyers are picking over the landscape and legal opinions are emerging as to how the UK’s departure from the European Union might be slowed or even stopped.”
It has come as a shock to many that the referendum result itself is not legally binding in UK law and it alone does not trigger the UK’s departure from the EU.
That has to be done under the withdrawal process laid down in Article 50 of the Lisbon Treaty.
“In other words, the referendum has changed nothing legally but everything politically,” the BBC said.
Prime Minister David Cameron has said he will not trigger Article 50 while he remains in office. He announced after the vote he will step down but not before the matter of Brexit has been resolved.
An article co-authored by three legal experts for the UK Constitutional Law Association argues that under UK constitutional settlement, the prime minister cannot issue a notification under Article 50 without being given authority to do so by an act of Parliament.
The argument rests on the fact that without Parliament’s backing any prime minister would be exercising what are known as prerogative powers, executive powers held by the Crown since medieval times and now placed in the hands of ministers. They are often used in foreign affairs Parliament has largely left to the government.
However, the BBC points out, case law establishes these executive powers cannot trump an act of Parliament. As legislation can only be altered by legislation if a prime minister triggered Article 50 of the Lisbon treaty, putting the UK on a one-way road out of the EU without Parliament’s backing, he or she would be overriding the 1972 European Communities Act, which provides for the UK’s membership of the EU and for the EU treaties to have effect in domestic law. This means that these restrictions may inhibit acts of both Cameron and his successor, most likely a woman Conservative Party politician.
The Article 50 process thus would cut across and emasculate the 1972 act requiring the prime minister of the day to need the backing of a new act of Parliament to give him or her the constitutional authority to push the Leave button.
Other moves in the House of Commons and Lords are also seeking to get Parliament involved and a legal challenge mounted through crowd funding is also in the cards.
Other likely legal or constitutional challenges may include one from Scotland, which wants to stay in the EU, as well as initiatives from Northern Ireland and Wales, who all want to stay within the EU.
An online petition calling for a second EU referendum and backed by more than four million voters seeks a change in the referendum rules requiring a second vote if either side achieved less than 60% on a turnout of less than 75%. The petition is nowhere close to achieving its objective but passions are running high and British politics over Brexit remain fraught.
The Brexit jigsaw: Piecing together reality, rhetoric and the rule of law to decode the politicians’ contradictions before the referendum, by Asad Rizvi | http://www.academia.edu/26267019/The_Brexit_Jigsaw