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17 November 2016 / Nicholas Strauss KC
Issue: 7723 / Categories: Features , Public , Brexit , EU , Constitutional law
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Brexit: the final say

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Article 50: an incorrect concession? Nicholas Strauss QC proposes an alternative line of attack

  • ​There is little point in a referendum which is advisory only, as it just throws the ball back to Parliament, so that the public vote is little more than an opinion poll.
  • The government’s best hope may be to reconsider its concession that the referendum was not binding before the appeal to the Supreme Court is heard next month.

In Santos v Miller v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin), [2016] All ER (D) 19 (Nov), the Divisional Court decided that the government’s prerogative powers did not enable it to implement the result of the EU referendum by giving notice under Art 50 of the Treaty on European Union. Another Act of Parliament is required, in addition to the EU Referendum Act 2015 (the 2015 Act).

Government’s concession

The government had accepted that the result of the referendum did not itself provide the source of a power to give the notice, because it was only “advisory”, even though neither

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MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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