Lawyers to check if Brexit was triggered properly

Jigsaw of EU flag saying Brexit in middle and with one piece coming out

Was Brexit ever actually triggered properly? – that is the question which lawyers for the Welsh government are going to look into.

The Shadow Minister for Wales in the House of Lords, Baroness Eluned Morgan, raised the issue at a session of the Welsh Assembly this week after lawyers flagged possible technical problems with the act of parliament that the UK used to authorise the triggering of article 50, the EU’s exit clause.

As previously argued in an article in Counsel magazine, some experts have raised doubts due to the fact the European Union (Notification of Withdrawal Act) 2017, did not actually include a decision to leave the EU, but merely gave power to Prime Minister Theresa May to trigger article 50 if she chose to do so.

Some lawyers have suggested that this was wrong, as the Gina Miller case, which went to the Supreme Court, found that parliament was sovereign and had the final say on whether or not the UK should leave.

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Speaking in the assembly, Baroness Morgan asked Welsh Finance Secretary Mark Drakeford if it was true the act may have such a technical flaw.

She said: “I understand that coming from an EU enthusiast like me that is going to sound like a ruse for stopping us to leave the EU but it is not. It’s a genuine question of whether the act as it is drafted could be challenged in court.” 

Mr Drakeford said: ““I am aware of the point about this potential technical flaw in the article 50 legislation. 

“There are a group of lawyers, there is one in my constituency, who has argued very much so that there is a technical problem with the act of parliament that was passed by the UK. 

“I know that they have taken this view to the European Commission and I know that it is shared by some very senior previous law lords for example.”

He said he would seek a view on the matter from lawyers for the Welsh government.

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