Like many, whether they voted to remain in the EU or leave, I have been closely following Gina Miller’s (and others) case against the government which the Supreme Court decided today. I will leave the constitutional law and political implications to others but there are parts of the judgment that remind me of advice I give to clients time and time again!
Have a written agreement…
One of the most fascinating (well, for someone who is interested in law at least) is that UK’s unwritten constitution means that the authority of the government to do things without reference to Parliament is unclear. Many of the arguments made to the Supreme Court centred on this issue, all of which have been avoided had the UK had a written constitution that dealt with the effect of referenda.
The same is true for oral agreements, which can form a contract, but are often difficult, if not impossible, to use as evidence of what the parties have actually agreed leading to a dispute. Written agreements significantly reduce the risk of arguments developing.
… a clear written agreement
Another argument raised in the case was whether Parliament, in enacting the European Union Referendum Act, intended to give the government power to trigger Article 50 if the country voted to leave the EU. The Act was silent on this issue. Had Parliament added a section to the Act saying a vote to leave the EU would have repeal the European Union Act 1972 and allow the government to trigger Article 50 this would have been avoided.
Similarly a written agreement is only as good as the drafting. A well drafted agreement can not only save thousands of pounds on unnecessary disputes but also make it easy for all parties to work out what they have to do when. Badly drafted agreements can have the opposite effect.
Identify foreseeable risks (and mitigate against them)
It strikes me that the government could have foreseen the risk of a vote to leave the EU and planned better for the legal implications of the vote, although maybe they wanted to avoid that issue in favour of passing the legislation for the referendum quickly.
Again, the same is true when concluding a contract. TOne purpose of any contract is to allocate risks between the parties, apportioning liability between them and limiting their liability in a reasonable way. To do this they must identify the potential risks, then devise solutions to mitigate them and finally work out if it is worth spending money to mitigate that risk.
Fortunately, we have lots of experience in helping clients conclude clear agreements they can understand and consider the foreseeable risks (and assess whether the benefit of mitigating them outweighs the risks) so they do not end up in the Supreme Court or with a nasty surprise!
If you want to know more about how we can help, call or email me.
Supreme Court President Lord Neuberger said: 'By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so.'
He added: 'Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights.
'The UK's constitutional arrangements require such changes to be clearly authorised by Parliament.'
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