Legal challenge threatened following UK Brexit vote
5 July 2016
A top London law firm has threatened legal action against the government following the referendum on UK membership of the European Union, which resulted in a 52 percent majority in favour of Leave.
Mishcon de Reya solicitors are trying to prevent the triggering of Article 50 of the Lisbon Treaty, which would formally begin two years of negotiations on British exit.
The law firm, acting on behalf of an anonymous group of clients, says that unless it is reassured this will involve an act of Parliament it will take court action to ensure the government protects “the sovereignty of parliament in invoking article 50.”
Its challenge is likely to involve arguing that the referendum was advisory only, and that the prime minister can only trigger Article 50 with parliamentary approval.
Kasra Nouroozi, a partner at Mishcon de Reya, said, “The result of the referendum is not in doubt, but we need a process that follows UK law to enact it.” However, he then said that the result should be taken “into account … along with other factors” so that Parliament makes the “ultimate decision.”
Such a challenge would massively exacerbate the constitutional and political turmoil caused by the June 23 referendum, which saw Scotland and Northern Ireland vote for Remain, in contrast to England and Wales, and has plunged both the Conservative and Labour parties into an existential crisis.
Outgoing Prime Minister David Cameron had said he would invoke Article 50 only after the completion of the Conservative leadership contest on September 9, which would determine his successor. All candidates in this contest are pledged to see Brexit through and have refused either a snap election or a second referendum. In Parliament, however, three-quarters of MPs voted in favour of Remain.
The fact that Mishcon de Reya are refusing to disclose the identities of its clients when it involves a major issue of public policy speaks to the anti-democratic character of its intervention.
According to the Daily Mail, the law firm is acting for a “group of academics and business figures.”
Mischon de Reya is one of the City’s leading law firms in areas of private equity, investment funds and commercial contracts. Its clients include Microsoft, American Express, the logistics company DHL, South African mining firm Lonrho, and Pfizer pharmaceuticals. It is not known if any of these are involved in the action.
The move represents the most serious attempt to date to overturn the result of the referendum. The law firm has reportedly been corresponding with the government since June 27, just four days after the ballot.
Mischon de Reya has retained Baron David Pannick QC and Tom Hickman, a practising barrister and Reader in Public Law at University College, to act as counsel. Hickman is one of three academics, leading members of the UK Constitutional Law Association, who have drafted a legal opinion arguing that any decision to proceed without an Act of Parliament could be overturned by judicial review.
Another of the authors, Nick Barber, an associate professor of Constitutional Law at Oxford University, told the Independent that the referendum was not legally binding and that the UK’s constitutional convention does not oblige Parliament to bow to the will of the people.
Britain is not a direct democracy where MPs must do everything their constituents order them to do, the Independent cited Barber. Rather, it is a representative democracy where MPs can decide to act in the national interest. Thus, “Parliamentarians could take into account how the referendum was run, the less than reliable statements made by the Leave campaign, the margin of the vote,” Barber said, and block the referendum result.
This might prove “difficult politically,” he warned, as MPs “would have to justify themselves to the electorate, and might pay the price at the next General Election.”
A major effort is being made to fashion a “popular” movement in support of such undemocratic moves, utilising the confusion created by the referendum campaign, in which both the Leave and Remain camps were headed by equally right-wing sections of the Conservative Party.
The entirely legitimate hostility of many workers, including the poorest sections, to the big business, austerity-imposing EU was channelled by the referendum behind a nationalist, anti-immigrant Leave campaign. Meanwhile, repulsion at this “Little Englander” agenda—especially among many youth—was diverted behind support for the EU, which was backed overwhelmingly by big business, the banks, US imperialism and NATO, and crucially with the blessing of the Labour Party and the Trades Union Congress.
On Saturday, thousands joined a “march for Europe” to London’s Parliament Square, waving EU flags, and carrying banners such as “We believe in EU.” “Bremain” and “EU’re the one I want.” Similar smaller protests were held in Edinburgh, York and several other towns and cities.
Organisers of the March For Europe, including popular event planners Secret Cinema, said the aim was to stop the government from triggering Article 50. The media circulated widely the remarks of Keiran MacDermott, a King’s College graduate. Brexit could be stopped by “refusing to accept the referendum as the final say,” he insisted. “It is the responsibility of Parliament to consider our democracy more carefully and call for a vote before they all accept the UK’s decline.”
“We [the protesters] can provide the ammunition Parliament needs to reason their way through this mess and reconsider Brexit, if we make a stand.”
Speakers at the rally included Liberal Democrat leader Tim Farron and Blairite Labour MP David Lammy, both of whom have called for a second referendum. Journalist Owen Jones, Labour peer Michael Cashman, actor Billie Piper and singers Sir Bob Geldof and Jarvis Cocker also addressed the rally (the latter in a video presentation).
Many cited the anti-immigrant propaganda and lies used by the Leave campaign to justify invalidating the result—either on the basis that the populace was lied to, or that “progressives” must make sure their voices will out.
Lammy said, “We cannot usher in rule by plebiscite which unleashes the ‘wisdom’ of resentment and prejudice,” while Cashman told the crowd, “Decent British values are also the values of the European Union.”
This is just a snow job for the EU, which is acting far more brutally in its treatment of refugees than even the British state has dared to at this point—tear gassing and batoning those fleeing from the Syrian and Iraq wars and forcibly deporting them to Turkey.
Geldof said that the Leave campaign had lied to those “who have been left behind” socially. “What they didn’t tell them was that the only way to stop unemployment and stop austerity is to grow an economy,” he said.
Many know only too well that talk of “growing the economy” is a euphemism for destroying their jobs and living standards in the interests of the super-rich. That is why, after 30 years of relentless social cuts, including eight years of austerity, the top 1 percent of the wealthiest UK households have as much wealth as the poorest 57 percent combined.
Those leading the Bremain (Britain Remain) campaign represent the dominant faction of the bourgeoisie, in alliance with a thin stratum of the upper-middle class who have benefited personally from the EU, which has played a lead role—alongside the British political establishment—in this social counterrevolution.
This is epitomised by the participation of Another Europe Is Possible in the demonstration. Set up as the “progressive” Remain campaign during the referendum, it was backed by Labour’s John McDonnell, the Green Party as well as the Pabloite groups Left Unity and Socialist Resistance. It is allied with Yannis Varoufakis, the former finance minister in Greece’s Syriza government, and his Democracy in Europe Movement (DiEM25). It was Syriza that repudiated the massive mandate in the July 2015 Greek referendum to oppose EU austerity and which is now leading the attack on workers and youth on behalf of the European bourgeoisie.