Brexit and the ‘Constitutional Requirements’ of Article 50

What follows below is a short paper written by Mark Freedland QC (Hon.).

In it he makes the argument that (1) the requirement in Article 50 of observance of the Member State’s ‘own constitutional requirements’ applies throughout the withdrawal process, i.e. not merely when notice is given (2) our ‘own constitutional requirements’ include respect for the Rule of Law, for the Sovereignty of Parliament, and for its Devolution of Powers to its constituent nations (3)  that the present conduct of the Brexit process may be tending towards a systemic failure to comply with those constitutional requirements and (4) that if and when that systemic failure had become effectively inevitable, this could be regarded as casting doubt on the validity of the withdrawal process.

There are only three ways forward. The first is that we enter into a Withdrawal Agreement. The second is that we leave with No Deal. And the third is that we revoke the Article 50 notice.

As to the first, Parliament has rejected – by a huge margins – the current iteration of the Withdrawal Agreement and the EU has said, in terms, that it will not be renegotiated.

As to the second, Parliament has rejected, again by a large margin, the notion that we might leave with No Deal.

This leaves the third. Parliament has never rejected revocation. Nevertheless the Prime Minister, through her spokesman, has said that revocation “is not something she is prepared to countenance.”

Does this observe our constitutional requirements?

We are currently taking advice from leading constitutional law Counsel on this point and we do not rule out litigating the point.

Brexit and the Constitutional Requirements of Article 50

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