OXFORD voted overwhelmingly to remain in the EU. The implications for Oxford of the leave vote are enormous. The question that I am asked is whether or not there is any possibility of a legal challenge to the result of the referendum.
The referendum is not legally binding. Parliament is sovereign. The issue of whether or not is what people expected is not a matter of law but of politics. There is no legal obligation to follow it through.
It could have been very different. The government could have imposed a requirement that at least 75 per cent of the electorate needed to vote before the referendum result would be recognised. They did not do that. The petition for a rerun now stands at over 4 million (interestingly enough the petition was instigated originally by the leave campaign prior to the result).
The first point I would make is that I consider there is no possibility of a legal challenge to the results of the referendum. It was a clear, although close, result. Arguments have been put forward that the leave campaign was based on a false perspective. There were the issues of the £350m which would be saved from the EU budget and refunded to the NHS and the promises of limitations to the number of migrants once the UK leaves the EU and on both of those there has been a substantial backtracking by the leave campaigners since the result.
My view is that a challenge to the result could not be made on this basis alone. After all, there was no challenge to the General Election result in 2012 when Nick Clegg promised the abolition of tuition fees and then rode back on that after entering government.
The important point to make, however, is that this was an advisory referendum and not a mandatory referendum. All UK law, including the law handed down by the European Union and the European Court of Justice remain in place today. It is only when the trigger is pulled on invoking Article 50 of the Lisbon Treaty that the timeframe will be put in place within which the UK will have to leave the EU. The only change to this would be if all the member states agreed to a shorter period. The UK automatically ceases to be a member of the EU two years after the notice has been given.
Therefore, no fundamental legal change will take place to the status of the UK as a result of the leave vote until 2018 at the earliest and possibly 2020.
It is possible that the trigger may never be pulled. There is a history of EU-related referendums being repeated until the ‘correct’ result is obtained. From memory, this occurred in Ireland, the Netherlands and Sweden.
There is, however, conflicting legal authority as to whether or not the pulling of the trigger to commence the Article 50 process requires the authority of Parliament. It is by no means clear that the House of Commons would vote for such a process.
There is legal authority that the Prime Minister can issue notification under Article 50 without the authority of Parliament using what are known as prerogative powers which are a collection of executive powers held by the Crown. This is often used in matters of foreign affairs.
There is conflicting legal authority that if the Prime Minister took this action it would infringe the 1972 European communities Act.
It is also possible that the case for a second referendum could gain momentum during the intervening period and there is a great deal about that at the moment. There is also the possibility and, indeed, probability of another general election being fought on the precise terms of exit.
The fixed-term Parliament Act mandated a five-year fixed term for Parliament. That can be overridden if voted for by a majority of MPs. A General Election could take place earlier than the five years.
There is then the issue of the Scottish Parliament. The Scottish Parliament is required by law to ratify the UKs withdrawal. At the present time it appears almost certain that the Scottish Parliament will withhold consent to ratification. The Scottish Parliament would be acting under what is known as the Sewel Convention.
A crowd-funding website called crown justice have suggested that any legal challenge would be the most important public law challenge in living memory.
* John McNulty is a solicitor with Oxford legal firm Turpin & Miller
Comments: Our rules
We want our comments to be a lively and valuable part of our community - a place where readers can debate and engage with the most important local issues. The ability to comment on our stories is a privilege, not a right, however, and that privilege may be withdrawn if it is abused or misused.
Please report any comments that break our rules.
Read the rules hereLast Updated:
Report this comment Cancel