The legality of brexit

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With tens of thousands marching in anti-Brexit rallies, one question that gets raised – is Brexit legal? John Kerry was criticised for suggesting recently that the Brexit vote could be “walked back.

You see the referendum was only advisory and not legally binding (no doubt the idea of civil servants who don’t want the bigot brigade dragging the country out of the EU without some sort of legislative oversight). In theory therefore, an act of parliament is needed to legitimise the leave vote. Attempting to invoke Article 50 without this would, as we will discuss, open up various potential pitfalls and show stoppers which any PM will want to avoid before trying to negotiate with the EU.

So all Teresa May the next PM needs to do is ask Parliament to vote on it and that’s it, right? Well no. The remain side have an overwhelming majority in Parliament (about 3 to 1 in favour of remain) and if allowed a free vote may decide to defy the electorate and vote against it. Alternatively some may simply abstain, which if enough do, then there will not be a sufficient quorum to make the vote legal.

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Now before anyone says that’s undemocratic, well actually no, forcing MP’s to vote for something they fundamentally disagree with would be undemocratic. Parliament is there to prevent mob rule, not facilitate it. Indeed a legal expert has concluded that the lies of the leave campaign are in fact so serious that they were “criminally irresponsible”. This presents more than sufficient grounds for an MP to reject the referendum result and vote against any attempt to invoke article 50.

The two main parties may well enforce the party whip and force MP’s to vote for it, but its hard to see how that’s going to work given the current chaos in the house of commons. The house of lords, and perhaps arguably the Scottish Parliament, northern Irish and Welsh assemblies must also give their consent. All of these bodies are very much opposed to Brexit and again if given a free vote would overwhelmingly reject it.

The house of commons could overturn these objections using the Parliament Act, although its unclear if this would be applicable under the present circumstances (we are into uncharted legal territory now), there would need to be multiple readings of the bill in the Commons (all of which would have to pass) and then a delay of at least a year. And given the EU’s insistence on invoking article 50 first, that would suggest it could take sometime before Brexit will occur. A long period of uncertainty is exactly what the markets fear about Brexit.

This is why some argue the solution is what I call the Palpatine option. As in “I’ll make it legal”. In other words the PM simply argues that politics trumps the law and invokes article 50 without first consulting parliament. However this would raise the risk of the Brexit process being challenged in court. The worst case scenario for the UK is to be half way through the Brexit process and have it halted by the courts. That would leave the country in legal limbo.

Also it would effectively legitimise any future Scottish independence referendum. If the UK can leave the EU via a non-legally binding advisory referendum, then the SNP will argue that so too can Scotland leave the UK via one. Particularly if the main reason for having a 2nd independence referendum is the decision to illegally withdraw the UK from the EU without applying the proper checks and balances, after Scotland voted to stay in.

Some have pointed to how the Spanish were able to stop the Catalan’s advisory referendum leading to independence, as an example of how Westminster will handle the SNP. However I would make a few points. Firstly the Spanish haven’t just voted to withdraw from the EU and drag the Catalan’s out against their will. Secondly, Spain has a proper constitution, while the UK has a load of contradictory laws written on the back of goatskin that we laughably refer to as a constitution. And thirdly, the Catalan independence campaign is really just a reaction to the current right wing government and their austerity policies. Once they are out of the way, its expected that support for independence will evaporate.

Also keep in mind, one of the cards the rUK would have been holding over the SNP was the option of blocking Scotland’s membership application for the EU (if for example the Scot’s refused to take on their share of UK debt or tried to make a unilateral declaration of independence). That option disappeared on the 23rd of last month.

So given the situation I would argue that those who reckon Brexit might not happen, or that there should be a second vote may well have a point. Which brings us back to John Kerry. You see in America lots of states have advisory referendum’s like this all the time. Usually its some nutter who manages to get a lot of signatures and puts forward some BS proposal (making not just gay marriage illegal but making gays illegal sort of stuff). And a lot of the time nothing happens because the state legislators just ignore them, or the courts point out its simply not legal, or its a matter for the federal government to decide. In law at least what John Kerry said is correct.

Given the circumstances I would argue that the solution is simple. Have a 2nd legally binding vote, preferably at a more appropriate time of year (i.e. when we can guarantee turn out will be fairer and not blatantly favour the leave camp) such as September (this is why the SNP held the first independence referendum at this time of year). And this time don’t excluding millions of UK nationals overseas and EU nationals in the UK. Everyone gets a vote on a level playing field this time. Alternatively hold an early election in the autumn and then let parliament decide.

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