The Lawyers’ “Coup”

Legal action has been commenced to attempt to block any attempt to trigger Article 50 of the Treaty on European Union, and thereby irrevocably start Brexit, without first obtaining Parliamentary approval.

 

My judgment as I have explained before is that this action is doomed to fail. Some serious lawyers disagree, whilst others do not. In practice, one legal smell test is whether, as a barrister, you would be prepared to stand up and argue a point that you personally consider to be wrong. Bad arguments sometimes win, especially if there are other good arguments (or the merits) on your side. On this occasion I consider the argument that an Act of Parliament is legally required to be so hopeless that I would not be prepared to stand up and make it. I don’t myself think the legal issue involved is complex, and so would urge interested lay people not to defer to authority but to think about the arguments for and against themselves (As however I post as an anonymous Mondrian symbol, I would say that wouldn’t I?)

 

That doesn’t resolve the practical question of whether it will be politically necessary to have a Parliamentary resolution. My guess is that it will, and it is completely certain that there will have to be a great deal of consequential legislation in many areas dealing with the domestic law consequences of Brexit. The practical significance of the absence of any legal requirement for legislation to carry out Brexit is that it means that it is unarguable that Scotland has any power to block the process.

 

Given what I consider to be the legal hopelessness of the action, the interests of those pursuing it would be furthered if it were not pursued. Better to leave the legal position uncertain, with apparently serious people favouring your view, than to have the issue resolved against you.

 

A further problem is that the action may be politically poorly judged. It can be, and is being, portrayed as lawyers (who are not popular) financed by the metropolitan elite trying to overturn a democratic decision. More fuel for the Ukip fire. The best tactic for the Remainer is energetic and passionate inaction, while the consequences of Brexit become apparent and the realisation that the desire of German manufacturers to sell cars to us won’t lead to our being able to cherry-pick the bits of the EU we like, sinks in.

 

But, however misjudged it may be, seeking declaratory relief before the High Court is not a ‘coup’. The claim that the people’s will trumps the law is the cry of the fascist. If someone wishes to bring this claim, let them, and lawyers are not to blame for that. In these days of apparent chaos and political conflict, hold on to the rules.

 

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3 thoughts on “The Lawyers’ “Coup”

  1. It’s often forgotten how many times Eurosceptics have gone to court to try and overturn a parliamentary decision to join the EEC or to sign up to a new EEC treaty. They have no moral authority to argue against this litigation in light of that.

    • Oh yes. When answering a question about standing on another forum I couldn’t help but draw a parallel to R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg. Eurosceptics are most definitely no strangers to this sort of action.

      I agree though, that whether Brexit stands or falls is likely to depend on exactly how much the economic ramifications of the referendum bite the average member of the public over the next few months.

  2. The legal action is a delaying tactic so that the economic effects you mention have time to bite. May cannot move until this is resolved, so every week that passes is one week further into the abyss before we lose the right of return. And if by some chance it succeeds then that’s another month or two to get it through the lords.

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