In a stark warning to those who believe that Brexit was secured by the recent referendum result, constitutional experts have revealed there is a way to ignore the will of the voters.
The view that it is still possible to block a Brexit through legal machinations hangs on the fact that the first step required to leave the European Union (EU) requires Members of Parliament (MPs) to pass an Act of Parliament.
According to a lengthy legal opinion written by members of the UK Constitutional Law Association, the Article 50 declaration required by the Lisbon Treaty to kick off the Brexit process can be stopped by pro-Remain MPs simply voting down the Act.
Nick Barber, an associate professor of Constitutional Law at the University of Oxford, told The Independent that whether or not they use their legal power to block a Brexit is a question of MPs’ political courage. He explained:
“It is a course of action that is open to them. As a matter of law, the referendum is not legally binding. Unless I have missed it, there is nothing in the European Union Referendum Act 2015 that says it is.”
According to one of the other authors, if a Prime Minister attempted to invoke Article 50 without a valid Act of Parliament in support, he would risk being overruled by the courts. Dr Jeff King, a senior law lecturer at University College London said:
“It is possible a member of the public would qualify to seek a judicial review, and parliamentarians certainly would. It is unequivocally their interest at stake if their claim is that they have the constitutional right to ask the executive to issue or not issue the [Article 50] notification.
“The likely success [of the review] in court is a different issue.”
A Prime Minister using the Royal Prerogative to invoke Article 50 unilaterally is also problematic because it cannot be employed when doing so runs counter to existing Acts of Parliament – in this case the 1972 European Communities Act and the European Parliamentary Elections Act 2002.
Ultimately Professor Barber concedes that finding MPs willing to exercise their constitutional rights to block Brexit is rather trickier in practice than in theory. He concluded:
“They would have to justify themselves to the electorate, and might pay the price at the next General Election. It would be a very brave Parliament indeed that didn’t uphold the referendum.”