Brexit for lawyers
It’s been a rum week, hasn’t it? There is huge uncertainty post the Brexit vote, not least because there is no political plan and no PM yet in a position to formulate one.
Lawyers will have their own specific concerns, so I’m here to help!
It’s never a bad idea to ask Google first. What does the referendum result mean legally speaking? What are lawyers saying about Brexit now (in the last week)? What will Brexit mean for lawyers?
But, in view of the amount of uncertainty even amongst experts, these results raise more questions than answers, so here are some of the resources and commentators I have found most useful in answering these questions.
A hat tip first to Paul Magrath (@Maggotlaw), who blogs at the ICLR Blog, for his post covering the legal consequences which was produced in the immediate aftermath of the referendum result Weekly Notes: legal news from ICLR – 24 June 2016. This links to a number of the articles by commentators mentioned below.
It’s all about Article 50
The principal legal and constitutional questions are whether notice under Article 50 of the Lisbon Treaty need be given, who is competent to make the decision to give notice and how any subsequent settlement would need to be ratified.
As opinions on this change by the hour*, your best bet is to follow the latest comments on Twitter from those lawyers who are focussing on the constitutional implications of the Brexit vote and thence read their more considered writings on their blogs. I’ve created a Twitter list where you can follow the leading commentators as a group. They are:
Mark Elliott (@ProfMarkElliott), Professor of Public Law at the University of Cambridge, who blogs at Public Law for Everyone, has recently focussed on the constitutional implications of Brexit.
David Allen Green (@davidallengreen), who blogs about law and policy as Jack of Kent and is also a legal commentator at FT.com, is probably the most prolific tweeter and writer about Brexit.
Carl Gardner (@carlgardner), a former government lawyer who blogs about public law as Head of Legal, is also a prolific Tweeter about Brexit.
Jolyon Maugham (@JolyonMaugham) QC, a tax lawyer who blogs at Waiting for Godot, is currently commenting extensively on Brexit on his blog and on the broadcast media. His latest post on The Big Green Button Bill argues that invoking Article 50 would require an Act of Parliament.
He acknowledges Nick Barber, Tom Hickman and Jeff King who earlier explained this position on the UK Constitutional Law Blog:
“our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and the rights of British citizens that flow from that membership.”
Jolyon has successfully crowd-funded on CrowdJustice in order to “take advice from the leading public lawyers in the country … and then to write to the Government to discover its position.”
Another arguing that Parliament must be consulted is Geoffrey Robertson QC in How to stop Brexit: get your MP to vote it down:“It is being said that the government can trigger Brexit under article 50 of the Lisbon treaty, merely by sending a note to Brussels. This is wrong. Article 50 says: ‘Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.’ The UK’s most fundamental constitutional requirement is that there must first be the approval of its parliament.”
Even after the UK negotiates a withdrawal agreement pursuant to Article 50, Eoin O’Dell speculates There may be an Article 50 route to a second Brexit referendum and the UK remaining in the EU.
* I give up. Mark Elliott has just written On why, as a matter of law, triggering Article 50 does not require Parliament to legislate.
What about the effects for lawyers?
One thing everyone seems to agree on is that there will be plenty of work for lawyers! You may, like the Financial Times, view this as a “Brexit bonanza” or agree with the Economist that “The happiest people in Britain today may well be the lawyers”; at the same time you may be aghast at the huge civil service time and expense required to draft many thousands of pieces of new legislation and renegotiate all those agreements. That will reduce that supposed £350 million p.w. saving even further for the next several years. Law Society president Jonathan Smithers’ view is rather understated: “It's clear that there is an enormous amount of work to do in the coming months and years to establish the terms of withdrawal from the EU and scope necessary changes to domestic law.”
The show must go on
Follow the usual star bloggers for Brexit developments in their respective areas of law:
On immigration: Colin Yeo (@ColinYeo1) at Free Movement.
On human rights: Adam Wagner (@AdamWagner1) at UK Human Rights Blog.
And here are a couple of specific short articles on issues close to our Newsletter interests:
Brexit Tech: It’s Complicated by Shelly Palmer offers some thoughts about the near-term impact Brexit will have on the tech sector and makes a few educated guesses at the outcome.
Eduardo Ustaran, Partner at Hogan Lovells, proposes A way forward for UK data protection:
“But yet, data protection law is a vital element of the regulatory framework of any progressive jurisdiction … The government must find a responsible and effective form of regulation, bearing in mind that information is global and precious. Businesses will be best advised to carry on with their plans to comply with the GDPR.”
Nick Holmes is Editor of the Internet Newsletter for Lawyers and Legal Web Watch. Follow him on Twitter @nickholmes.
Image: By Jose Manuel Mota on Flickr.