Author Archives: Richard Robinson

Another Article 50 court case (and Article 127): why we should take notice

Just as the Supreme Court Article 50 hearings finished, another two potential cases appeared which could affect the government’s Brexit negotiating strategy, both of which address significant legal uncertainties remaining.

The first is a case developed by Jolyon Maugham QC that was crowdfunded in 48 hours last weekend. It seeks to resolve two legal uncertainties, i) whether Article 50 is indeed irrevocable (something that was not an issue in the recent Supreme Court case), and ii) whether the UK would automatically withdraw from the single market or European Economic Area (EEA) when Article 50 is triggered. The separate EEA Agreement was ratified by the UK in the EEA Act 1993. The case is being filed in the Irish courts, asking them to refer it directly to the European Court of Justice (ECJ), a process of at least 9 months.

Article 50 does not indicate whether or not its application is irrevocable, so it may be revocable following customary international law. Not surprisingly, David Davis sounded unsure when asked by the Brexit Select Committee! Only the ECJ can decide as the final arbiter of the EU treaties. If Article 50 is found to be revocable then we have a unilateral legal basis for implementing any second referendum decision to remain in the EU after the deal is agreed.

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Article 50 in the Supreme Court: what we should do next?

It is just over a week since the Supreme Court Article 50 hearings finished and all the excitement that went with it. For those of you who were fighting a by-election, the case was not a rerun of the High Court hearings as interventions were heard from all parts of the United Kingdom. The decision could have fundamental ramifications on the relationship between Westminster and the devolved administrations on top of the decision on Article 50 and the extent of the Royal Prerogative.

No one can realistically predict the result and I, as a non-lawyer, will not even try. But we must decide how we should respond to it. I list some of the possible outcomes below. How we challenge the government will vary dramatically in each case and needs careful thinking through now before the Supreme Court announces its decision before the government moves quickly to meet its March 2017 deadline if we are to respond quickly.

  1. The UK Government wins and no legislation is needed to trigger Article 50, i.e. a reversal of the High Court decision.
  2. A very short bill to trigger Article 50 has to go through parliament, drafted so as to reduce the chances of amendment (and probably already prepared).
  3. Substantive legislation is required to trigger Article 50 modifying existing legislation – this could more easily be amended to bind the government’s negotiating mandate.
  4. On top of either 2 or 3, the government is also required to consult the devolved assemblies (the Sewel Convention) to agree legislative consequences on the devolved administrations. How should we respond if no agreement is forthcoming?
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What does the referendum result mean?

Almost every MP and politician from Tim Farron to Nigel Farrage has been saying that we must respect the result of the EU referendum last Thursday but there is no agreement on what the result means.

The act setting up the referendum deliberately made the result advisory, leaving parliament and the government to take the final decision (unlike the AV referendum, which was binding). But what is the final decision? To articulate a vision of the UK outside the EU, something not articulated by the leave campaign during the referendum? To prepare an initial negotiating position? To allow Scotland a second independence referendum? To notify the European Council under article 50 of the EU treaties?

We should respect the result of the referendum. But I believe this only means that the new prime minister, whoever they may be, has the obligation to clarify what our new relationship with the EU should look like (recognising our weak negotiating position). No more, no less! They should then go back to the electorate, through either a general election or second referendum, to gain a mandate for their proposed approach. This second plebiscite would then give a clear choice to the electorate and happen under very different conditions. 

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Earthquake in Austria

Austria Hofer


Last Sunday, the post-war consensus in Austrian politics was swept away. Nobert Hofer, from the far right Austrian Freedom Party (FPÖ), came top with 35% in the first round of the presidential elections and faces a run off Alexander van der Bellen, a former leader of and supported by the Greens, who received 21% and came first in most cities including Vienna. Turnout was a respectable 69%. The campaign for the second round ballot on May 22 is likely to be bruising and divisive. Forecasts suggest that Hofer will win.

This was no earthquake as the FPÖ had performed well in local elections last October. This time Hofer’s result was significantly better than the polls had predicted. The Greens were also pleased with van der Bellen’s result. NEOS, our young sister party, had backed Irmgard Griss who came third with 19%. They are now supporting van der Bellen ‘for the Republic’.

Austria van Bellen

The candidates supported by the two main parties came fourth and fifth with around 11% each. The Social Democrats (SPÖ) and the Austrian People’s Party (ÖVP) have provided all previous presidents since the Second World War and are currently governing together in a grand coalition. The coalition is now responding by tightening asylum laws and building more border fences.

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Recent Comments

  • User AvatarKevin Langford 5th Jul - 5:11pm
    3) on party strategy; this has many elements. In relation to the points raised a) We need to have some consistent, clear and distinctive things...
  • User AvatarKevin Langford 5th Jul - 5:10pm
    So quite a bit to respond to here - and apologies to some that I was out when this went live! To pick up three...
  • User AvatarTom Arms 5th Jul - 4:39pm
    Manfarang, I know you are right in asserting that there are Israelis who actively advocate a settlement which satisfies both the Jewish and Palestinian communities....
  • User AvatarPeter Martin 5th Jul - 4:06pm
    @ Paul Barker, In principle nothing needs a referendum. Not even a constitutional matter. But if you think you see Tory and Labour MPs voting...
  • User AvatarAntony Watts 5th Jul - 3:21pm
    I would add * make technology, digital, work for green
  • User AvatarAntony Watts 5th Jul - 3:18pm
    Stop belly aching. No good just shouting "the government didn't do this or that. Just say what we would do, loudly and long