Senior EU law experts have provided a written legal opinion advising that a second Brexit Act will be required once negotiations have taken place before the UK can leave the EU.
The opinion, commissioned by Bindmans for campaign group the People’s Challenge, was written by “three Knights”: Sir David Edward, a former judge of the European Court of Justice (ECJ), Sir Francis Jacobs, a former Advocate General at the ECJ, and Sir Jeremy Lever, a distinguished EU lawyer. The opinion was sent to Peers ahead of this week’s House of Lords debate on the European Union (Notification of Withdrawal) Bill 2017.
In essence, it advises that the Bill is enough to trigger the Art 50 notification process but not enough to actually leave the EU. For actual withdrawal to take place, Parliament must approve a separate Act once the outcome of negotiations, and the impact on business and individual rights, is known.
The People’s Challenge supported the Supreme Court case brought by Gina Miller, which successfully challenged the government’s proposal to use the Royal Prerogative to begin the Brexit process.
The opinion states that the UK’s “constitutional arrangements” for Art 50 purposes mean that notification will effectively be conditional on Parliament subsequently authorising the UK’s exit from the EU and that, under EU law, there are “very strong arguments” that, if Parliament decided to reject the available terms of withdrawal two years from now, the notification could be unilaterally revoked by the UK (paras 2(vi) and 48). It states: “Art 50 cannot have the effect of ejecting a member state from the EU contrary to its own constitutional requirements”, including Parliament’s final decision.
The opinion concludes by recommending amending the Bill to set out the constitutional position clearly. It highlights that, if no agreement is reached within the two-year period for negotiation, then ministers must seek consent from Parliament to leave the EU.
People’s Challenge group member, Grahame Pigney said: “The House of Lords will debate a Bill designed to surrender the Parliamentary sovereignty that was upheld by the Supreme Court only weeks ago.
“We hope this opinion will help peers understand that the Bill does not have that effect, Parliament will still be able to deploy its constitutional handbrake at any time during the next two years, and the EU will be bound to respect that. This leaves open the option of withdrawing our Art 50 notice if there is no acceptable deal agreed and Parliament decides that a hard Brexit is not in the national interest.
“The Three Knights’ Opinion is now the most authoritative view available on Art 50, short of a judgment by the EU’s own Court of Justice. It brings into sharp focus Parliament’s constitutional role in protecting the national interest and the rights of businesses and millions of citizens, whatever the government might say.”
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