Sailing in circles

Binyamin Ali dissects the constitutional legitimacy of the government triggering article 50 TEU

'No, I'm not. There… I don't want to do it and there are people who are far better equipped than me to do it.' Michael Gove's response when asked if he was interested in becoming prime minister in May 2016 capped off a series of prior occasions where the Lord Chancellor denied his desire for the top job.

In light of his previous U-turn as education secretary, climbing down from his plan to scrap GCSEs in favour of a baccalaureate, Gove's unexpected candidacy for the Tory party leadership is not without precedent and deserves much less disbelief.

As he and fellow frontrunner Theresa May scramble to fill the power vacuum created by David Cameron's resignation, the legal sector will continue to exist (like the rest of the country) in a state of flux until further notice - at least until 9 September.

With a lame duck for a prime minister, a Soviet-style political capitulation for an opposition, and no working government to speak of, the nation currently sits unsure of itself at a port, threatening to go boldly into the unknown.

Before any such voyage into the dark can be taken by the next leader, however, the constitutional legitimacy of the government triggering article 50 of the Lisbon Treaty, thereby giving effect to the Brexit vote, has been called into question.

Tax lawyer and Remain voter Jolyon Maugham QC of Devereux Chambers has crowdfunded a little over £10,000 to take advice on, and investigate, the matter. 'There is a funny thing about the EU Treaties that make up the legal framework of the European Union. They are given effect to in the United Kingdom by an Act of parliament: the European Communities Act 1972. And whoever [triggers article 50] will, in effect, denude that act of content,' he writes.

By triggering a process that will effectively lead to an Act of parliament becoming a dead letter, Maugham argues that some sort of Brexit Act is required to trigger article 50 - given that 479 MPs declared for Remain and only 158 declared for Leave the day before the referendum, he hopes this will be enough to ensure that no such Act can ever be passed.

Alongside the petition calling for a second referendum (which has so far garnered just under 4.1 million signatures), Maugham's challenge might appear to be nothing more than the latest bitter attempt to overturn the will of the British people by a Remain voter.

However, writing in the UK Constitutional Law Association blog, Jeff King, a senior lecturer in law at UCL, Nick Barber, a fellow at Trinity College Oxford, and Tom Hickman, a barrister at Blackstone Chambers, have all put their weight behind this constitutional argument.

The trio cite Lord Browne-Wilkinson's remarks in R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513: 'It would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of parliament as expressed in a statute and, to an extent, to pre-empt the decision of parliament whether or not to continue with the statutory scheme.'

Taken in tandem with the Case of Proclamations [1610] 12 Co. Rep. 74, where Lord Coke asserted that 'the King, by his proclamation… cannot change any part of the common law, or statute law', they argue that the treaty-making royal prerogative cannot be invoked in the case of Brexit, as it will alter a previous statute.

In his resignation speech, David Cameron said he was passing the article 50 buck onto the next captain, but forgot to mention (probably through ignorance rather than design) that the ship's helm, as far as Brexit is concerned, could well be off limits.

Binyamin Ali is guest editor at Solicitors Journal