The Independent reports that Dr. Andrew Watt plans to go to court to see if any agreement replacing the Lisbon Treaty as a result of the UK’s Article 50 notice requires a referendum under the European Union Act 2011. The parliamentary draftsman carelessly states that a treaty or decision amending the “Treaty of the European Union” cannot be ratified unless there’s a referendum. In the pre-amble, it states that amendments include amendments taken under Articles 48 & 49, but it’s not exclusive i.e. other amendments to the Treaty also trigger the Law. Part 1 §4 lists the type of changes which must trigger a referendum and they do not include any arrangements on leaving, but they do include “extensions of competence”, new obligations (for the UK) and new sanction powers for the EU.
I would argue that any transitional treaty which does not extend time of the UK’s rights to appoint a Commissioner, appoint Judges to the CJEU and elect MEPs will require a referendum and other clauses may also do the same. Even if some disagree, there can be surely no doubt that it will require a statute mandated Parliamentary statement and an Act of Parliament and it’s the Act of Parliament that determines if there should be a referendum.
This could be one reason why they are so keen to be thrown out. …