1 Oct, 2016 @ 12:30
2 mins read

Can Parliament stop Brexit?

Charles Gomez
Barrister Charles Gomez

Barrister Charles Gomez
Barrister Charles Gomez

SOME 801 years ago the Magna Carta set in motion the gradual erosion of the English monarchy’s absolute powers, leading to today’s concept of parliamentary sovereignty.

This allows the Parliament in Westminster to make or repeal any law. The process has not been uneventful; there has been a civil war, Charles I was beheaded; James II was exiled after the “glorious revolution”, and, more recently fear of bolshevism quickened the pace of democratisation.

So what happens when the will of the people (as expressed in the referendum of the 23rd June 2016) is not much to the liking of the people’s representatives in London? This is a legal column and not the right forum for a political debate on how, if we are to believe the Bremainers, it has come to pass that a majority of the people’s representatives apparently hold different views to the majority of the people.

So, can the body of MPs ignore the referendum result and refuse to approve a notice of withdrawal from the EU  under Article 50 of the Lisbon Treaty?

Can the 650 MPs and the 760 Lords (the second biggest Parliament in the world after the Chinese), ignore the 17,410,742 who voted for the UK to secede from the EU? Constitutionally, Parliament can do just that but the precedent thus set might make people question their faith in democracy, a thought process that normally ends up in tears.

Ironically it is a remnant of pre-Magna Carta absolutism that looks set to ensure that the popular vote is respected, and Westminster is side-stepped. It is called the Royal Prerogative whereby the Queen retains the power to make and repeal international treaties. By constitutional convention the monarch exercises the prerogative via the government of the day. The government in Whitehall is not, of course,  the same as Parliament which sits at Westminster and the decision therefore rests with Theresa May’s cabinet. The Prime Minister has made it clear that an Article 50 notice will be given in early 2017.

Some lawyers point out that after the accession treaties, a European Communities Act of 1972 was enacted by Parliament. That Act, they argue, can only be repealed by Parliament and not the government. The long title of the ECA 1972 is: “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar”. My own view is that if the Treaties of Accession go, the 1972 Act becomes inoperative because it was passed “in connection” with the treaty of enlargement.

In other words, to stop Brexit, the UK parliament would have to pass a vote of no confidence in Mrs. May’s government and replace it with a pro-remain administration but that would put at risk many more political careers and seats and … pigs might fly.

Next week more on Brexit as disillusionment with the EU spreads.


Charles Gomez (OP Columnist)

Charles Gomez has been a barrister for more than thirty years and is currently an Honorary Professor of International Law at the University of Cadiz, where he hosts lectures in English and Spanish.
Readers of the Olive Press are invited to discuss this or any other legal matter with Charles Gomez by emailing [email protected]


    • Since the outcome of the referendum reflected the popular will and was legally binding, the parliament is not only legally bound to confirm the result, but is morally as well. This is not (only) an issue about Brexit, but an issue about democracy, direct democracy, the principle of popular sovereignty.

  1. There are no legal loopholes and misinterpretations about the Brexit referendum and about the whole process, and there cannot be room for wishful thinking either.

    This was a binding referendum and once the UK parliament approves the Brexit referendum (Theresa May announced today (2 October 2016) that it would occur in late March), under the EU Article 50, the process of the UK’s exit from the EU becomes irreversible.

    Since the Conservatives hold the majority and there are many pro-Brexiters among Labour too, the parliament will very likely approve the results of the referendum.

    The UK must be very tough and determined in negotiating the best deal from Brexit for Britain’s sake, because the EU will very likely take a vindictive route and drive a hard bargain.

  2. The issue of the referendum being legally binding is currently being debated and contested by lawyers. It seems somewhat strange that such an enormous decision can be taken by a newly installed Prime Minister with no electoral mandate. That feels wrong; a general election seems, at the very least, a requirement.

    • The Lisbon Treaty states: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements”. The people had spoken in a referendum to leave the EU, not the MP’s. and it’s the duty of any ruling government to carry out the wishes of their people.

      • Teresa May has said that she intends to bring in a new bill for the exit process, and that generally requires there to be a vote. The UK is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum. Anyway, time will tell.

        • Fred,
          you keep on about democracy yet don’t accept the democratic vote of the referendum but are quite willing to be governed by 5 undemocratic presidents, not voted by the people, of the EU. Make up your mind. BTW, I predict the new bill will be passed the same as the government gave Blair the right to go to war on lies. Fear factor lost the vote to remain, all lies. Anyway as you say, time will tell.

          • Linda, I don’t “keep on” about democracy, I am just telling you how the UK democracy is constructed, and that is around a thing called a Parliament. If there is a new “repeal bill”, it should at least be debated and voted on by MPs. This complex sovereignty issue is being actively debated currently and many senior Tory MPs are not in agreement with leaving the EU. You have been a Tory all your life you say, so you must have helped elect lots of Tory MPs. Referendums must ultimately be removed from the UK system as they are outdated and too prone to media bias and scaremongering. And what makes you think Remain liked the Governments tactics? I thought it was terrible, it cuts both ways.

        • Fred,
          you keep on about democracy yet don’t accept the democratic vote of the referendum but are quite willing to be governed by 5 undemocratic presidents, not voted by the people, of the EU. Make up your mind. BTW, I predict the new bill will be passed the same as the government gave Blair the right to go to war on lies. Fear factor lost the vote to remain, all lies. Anyway as you say, time will tell.

      • Steve M.
        Quite agree, I have been a conservative member all my voting years and believe in democracy. I voted to “remain” in the EU but through a democratic vote can accept the wishes of the majority in the referendum the same as if a labour party was to win in the next election. (God help us).
        The Conservative Government had a mandate, not a PM (it was in Cameron’s last conservative election) to carry out the wishes of the people regardless who the prime minister was, whether it being Cameron, May, Tom, Dick or Harry, makes no difference, and May being the party leader is purely carrying out the wishes of the people. It’s called democracy.

        • I too have been a Conservative voter all my life but no more. They used to be the responsible party taking the togh decisions for the benefit of the country, now they are just a bunch of populists following the lead of the Daily Express and Mail. Had Cameron posessed any principles he would never have called a referendum, he called it to shut up a few Euro sceptic Tories and spike UKIP’s guns. We will have to live with his folly.

          • Believe you are getting me mixed up with someone else. That’s your problem I’m afraid. Who are you talking about or is it your usual negative comment.

          • Peter, point taken. So basically what you are saying is you’re quite content in being controlled by the Juncker crowd. And you call that the democracy you’re seeking.
            I tend to think that people forget what the referendum was about, not on lies advocated by the Fear Factor crowd but on future projections of a free democratic nation. There were no lies to talk about. Each day we now see the reversal of the Fear Factor syndrome. and if there is a reversal to remain I shall accept that finding without all the fuss that’s attributed to Brexist. It all comes under the umbrella of a democratic state. Gradually we are seeing walls being built around European countries, why, yet it was laughable when Trump first mentioned building a wall and the great wall we have, at the moment, is the English channel which was part of the referendum regarding immigration, which no doubt the Juncker crowd will collapse on. It’s already started, I see the head of Martin Schulz is now being called for which no doubt others will follow. One can actually see the “fear factor” on all their faces. We need immigration but not how it stands at the moment. Welcome to all I say providing they have a bona fide job to come to and somewhere to live with a health insurance policy for perhaps the first five years or so. (No financial state benefits). They will be earning a decent wage and could well afford the said policy etc. Believe Spain has a similar system.

        • Strange “Linda” In your previous incarnation you told us you weren’t eligible to vote in the Ref. in view of your many years in Spain. Come on, own up, we know who you are and so should the OP (unless they find it amusing?)

  3. The majority voted to leave albeit on a pack of lies from self serving politicians with more faces than Big Ben. I hope that the UK gets a good deal and remembers to look after all UK citizens whether living in the UK or not, I also hope that they do the right thing by all those EU citizens living and working in the UK who went there on the back of a set of rules which are about to be rescinded by a PM not elected by the voters or indeed members of her own party. However nothing will be achieved by the UK and some little Englanders running around telling the world they are superior and you better do what we want or else, or else what send a gun boat up the Seine or Rhine rivers. Finally the referendum was not legally binding and if before the completion of exit negotiations the government of the day decided that the economic damage was too great they are at liberty to ignore it. We do after all elect a government to run the country and make difficult decisions on our behalf and nobody calls for a referendum when the country goes to war which costs lives, no they just do it.

    • Good points Peter, and as for Teresa May invoking the bill without Parliament, just look at what happened last time when Blair bypassed Parliament on the Iraq disaster! This is why we absolutely require Parliament to be involved. It’s a no brainer.

      • Fred, more B/S. Blair had the approval of parliament to go to war. It would appear you don’t check things out before making certain comments. It’s a trait you must overcome.

        • Apologies, quite correct. Meant to say that Blair was committed to regime change in Iraq without UN sanction and both cabinet and Parliament was not fully briefed or consulted on that decision. No problem admitting an error, when there is one.

          • Fred, accepted, easy really, save a lot of space being used. BTW, not sure and have not looked it up, but didn’t Cook resign over this matter.

    • Good point Peter, there is nothing democratic about winning a referendum that was based on a pack of lies and I think it should go to the vote. The 3 dunderheads couldn’t negotiate their way out of a paper bag and they are all in favour of hard Brexit so I wouldn’t be too optimisic of the outcome if I were you.

      The only certainty is uncertainty and it is like watching lemmings walking off a cliff.

      • Jane G, slightly confused with your statement, ie; “there is nothing democratic about winning a referendum that was based on a pack of lies and I think it should go to the vote”. For a start a general election (a vote) is won by a referendum by the people, which other way is there and what pack of lies are you talking about. Did you really understand what the Referendum was about, it was not about financial matters but about the demoracy of a country….Rome and the British Empire was not built within a few days, months or even a few years so why people suddenly expect miracles to happen is quite surprising. You are no wiser in knowing who’s going to win the next World cup then Teresa May and until that final whistle is blown we will not know. People will still be able to travel, work, live and retire in another European country, in-fact many Brits live and retire in country’s outside of Europe, but all will need to abide with the laws of that chosen country. Britain will be no different even after Brexist but law’s need to be recognized such as the laws of a democratically run country, immigration to the UK is one of those laws, no lies about that. Lets wait and see..

    • Peter, did you not read my previous reply to you and could you explain what the referendum was really about and for what reason 17 and a half million people voted for and Please point out the lies that the remainers are playing on, perhaps the 350m a week payments to the EU. If you care to look back it was never stated that 350m was purely for the NHS it would be available for the NHS, farmers and other needing causes, yet the remainers never mention the mass of lies given by via the Fear factors.
      Could you and others that are against the referendum explain what happens to companies that may move from a stable country like Britain to a volatile Europe which will fold if it continues on it’s current dictatorial path. What happens if France leaves the EU with other countries to follow. Please explain what will happen. Britain is trying to establish a world of free trading nations and other countries will follow this lead. Some countries that intended to join the EU have now changed their minds, explain why. There are more reasons to leave than there is to stay. Would you also like to see a Labour government in power, if not why. Many questions to answer.

  4. The whole problem in the UK is reflected in the term ‘parliamentary sovereignty’. To make it clear – absolute monarchy was replaced by the rule of the robber barons. The English Civil War was a very sick joke. The Levellers thought they were fighting for real democracy. Colonel Fairfax soon put an end to that by executing the leaders of the Levellers. Sadly the Levellers were still serfs inside their heads and allowed the murders because that is what it was, of their leaders.

    So absolute power passed from a stupid arrogant ancestor of mine to the country gentlemen who like Fairfax were outraged that the serfs thought they had been fighting for their own freedom. This same war was fought again by the American colonists, led by the country gentlemen against the German Goth king George. Which is why the USA is not and never has been a real democracy, just like the UK.

    Fred keeps banging on about this corrupt and undemocratic ‘parliamentary sovereignty’. I’m thinking that this whole Brexit performance might just lead to a real civil war to implement real democracy. Why, because the Nasty party can tell all the lies it likes about the will of the people, when anyone with half a brain knows that the whores in Westminster, Nasty party, Pink Tories will never act in the interests of ordinary people only in the interests of big business aka the robber barons – Magna Carta was never about real democracy so let’s stop with this nonsense.

  5. The UK government was recently overruled by a senior Judge for not publishing its Brexit plans. The unredacted details can be seen here for anyone interested: “https://www.bindmans.com/uploads/files/documents/Article_50_final_corrected_and_unredacted_version.pdf”

    October 14th is the date that these legal arguments can be heard in court, to determine if Parliament will have a say in the Brexit decision.

  6. Germany is the only original member of the EU to be still solvent. The British Economy will right itself and come out way ahead based on this decision. The EU is the modern day economic answer to the Titanic. It will sink under its own weight at some point. Look at the propaganda and language the left wing and BBC financial journalists are using: “consequences.”. Natural market and economic consequences are one thing, petulant, punitive actions by interests that wished things had gone differently are totally another. What most ‘remainers’ don’t understand is that the decision by the majority of the UK electorate to exit from the EU was a political, not an economic decision.

    If you have any long – term savings that aren’t accruing interest. I would strongly recommend going long the pound and short the euro for a long-dated contract.

  7. Terence Rickaby,
    a good post. The EU was never set up to represent the interests of ordinary people it grew out of an organisation that was created to represent the ‘interests’ of the European steel and coal industries.

    So it is in truth a commercial and political organisation to promote control and increase profits of a corporate and bureaucratic elite. It is’nt only a majority of Brits who see this and the scum in Brussels know this full well.

    Stilglitz did a very good interview with CNBC and showed clearly who the Euro was created for (German industry) and why the % rate was set so low with it’s introduction (German again) and austerity, again controlled and dictated by the Germans and why it will never survive – interesting times lie ahead but many may fell the need the buy in a supply of Immodium.

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