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You Can not Leave Stay. How Britain’s Exit from the EU Can Be Blocked?


Dmytro Shemelin, lawyer at Ilyashev & Partners Law Firm
Source: European Pravda

No sooner had the British government recovered after a sensational summer referendum on the Britain’s exit from the EU than the High Court of England and Wales struck a new blow.

In the lawsuit filed by a group of activists the court ruled that Brexit is possible with the consent of the British Parliament.

How did it become possible?

The EU exit procedure is governed by Article 50 of the Lisbon Treaty 2007, which envisages that any EU Member State may decide to withdraw from the Union “in accordance with its own constitutional requirements”.

Whereas nobody withdrew from the EU before, and there is no constitution in Britain, it was unclear what it meant in this case exactly.

The British government wanted to follow a simple way and begin the exit procedure itself.

It would help to make the process faster and more predictable. The plan was to formally announce the exit in spring 2017 and at a growing “hard” rate to complete the process before the end of 2019.

However, then Gina Miller, an investment consultant from British Guyana, appeared on the scene,. She gathered a group of activists and filed a lawsuit against the government, claiming that the application for exit from the EU requires consent of the Parliament.

On November 4, 2016, David defeated Goliath: The High Court ruled in favor of Ms. Miller.

The order itself is unusual and even somewhat romantic, e.g. the court refers to the so-called “Case of the Proclamations” (XIV century).

The composition of the court is also as if from a Hollywood movie: in the court of the first instance sat Lord Thomas, President of the Supreme Court of the United Kingdom; Sir Terence Etherton, President of the Court of Appeal, a former participant of the Olympic Games and the first out-and-proud in the higher courts of England; Sir Philip Sales, court of appeal judge, who at the age of 35 became the youngest chief adviser of the Government in the courts, Treasury Devil.

In a nutshell, the reasoning of the court was that once the Parliament took the decision to join the EU, the Government can not take the decision to withdraw.

Otherwise, the act of the Government will cancel the acts of the Parliament, and it is contrary to the fundamental principles of the English constitutional law.

Certainly, the government immediately declared that the order of the High Court will be appealed.

The question is so urgent that the Government will ask to examine the complaint directly in the Supreme Court, bypassing the appeal. The Supreme Court, in turn, before the announcement of the decision reserved to the hearing of this complaint two days in December.

If the order of the High Court is upheld, which is quite likely, taking into account the composition of the court of the first instance, the question of Brexit should be considered by the Parliament, where Brexit opposition is strong.

The House of Lords is generally regarded as most anti-Brexit and can at least delay consideration of the law for several months.

Now, the Parliament will get every opportunity to at least set the framework for the government negotiations with Brussels. So far, the British Prime Minister did not much disclose to the public the details of negotiating his exit strategy.

In particular, the Parliament may order the Government to abandon the most odious parameters of “hard exit”, e.g. termination of a free trade zone.

And what if the Parliament will not be able to make the necessary decision? The stalemate in the Parliament would mean re-election in 2017.

Taking into account all the consequences that England has already felt since the referendum (enough to remember fall in the pound’s exchange rate), the elections can be considered by the opponents of Brexit as a chance of salvation.

Finally, a significant part of the EU legal rules has already been included in the English law. There are proposals to delete such rules, remove the EU law from the English legal field, and only then to exit.

It is clear that such reform will take years of approval and de facto mean abandonment of Brexit.

Perhaps one day they will make a film of this story: with heroic activists, principled judges, intrigue until the last moment and happy end.

It would be best if one might shoot such films about the Ukrainian courts.

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