The trouble with Brexit is: Whether you are gung-ho for getting out or still in denial, it looks like we’re in for a long haul; Article 50 triggered in May, two years of negotiations, finally an exit, then wham – more time spent trying to negotiate trade deals and recover from what looks like could be a total derailment of our economy. This could all have a long term affect on our business.
Is last weeks court hearing a game-changer?
But I’m not writing this to be pessimistic. The Santos and Miller v SoS court hearing last week has provided the first chink of light on a period of great confusion over the status of the Referendum and process for exiting Europe. It is a relief to know that there could be some very serious efforts made in the coming months to steady the ship and involve both the Courts and Parliament in any exit from the EU.
When putting something blindingly obvious to someone else, we often do that with delicacy and tact so that the person does not feel patronised. That is the underlying but expert tone of Lord Pannick’s submissions to the court on behalf of the Claimant, Ms Miller, on 13 October – he says; hang on a minute, for the past four hundred years or so (he uses a case from the early 1600’s), an act which is contrary to our primary statutory law is not something that the Crown, or the Government on behalf of the Crown, has the privilege or power to do.
Therefore the Government cannot trigger Article 50 using the Royal Prerogative (Lord Pannick submits) because the effect of doing so completely ignores, over-rides and effectively repeals the 1972 EC Act – once Article 50 is triggered there’s no way back however badly the negotiations go, and its a one-way path for the UK out of the EU.
So the Government needs to return to Parliament to authorise an exit from Europe, because Parliament did not provide or pass any power for the Government to end our relationship with the EU, neither was that power conferred on the Government either explicitly or implicitly within the European Union Referendum Act 2015. I tiresomely set this out in much detail in my post on LinkedIn; Could our EU Exit be halted by “Park the Bus” tactics?
Could Gina Miller be a Giant Killer?
Not necessarily, but she and her legal team are introducing a great hunk of legal process and a reminder of some key constitutional principles that have served us well for many hundreds of years. But this in itself could be extremely significant – whether she wins or not, the resulting judgment will hopefully ground us all and remind us that the Government cannot operate alone in a vacuum.
What effect could this have on law firms?
Due process through the courts, then in turn potentially involving Parliament through a vote on whether to repeal the EC Act 1972 will calm the nerves of the financial and commercial world, plus crucially Scotland, and (I say optimistically) it could restore confidence in the UK economy and the direction we are heading in. Even if we do still exit Europe, it may be that the effect of this will be less jarring on us should the whole process be given further consideration in Parliament first.
Most of us are not (or are no longer) flooded with clients who have queries specifically relating to Brexit, so restoring some calm and certainty in the UK economy will be good news for our clients, and in turn good for us.
Is this overly hopeful? It could be, but it makes a change from the other pessimistic “we’re in for a tough time” economic and financial predictions. Comments welcome please.
UPDATE 3/11/16: The court has confirmed that the above basic principles of constitutional law apply within a judgment that trots with ease through the essentials like the relevant chapters in a Constitutional law textbook. Can anyone see this being overturned on appeal? Frustrating that this will be prolonged until December 7 and 8 for both in and out camps.