The Independent has reported that another legal dispute over Brexit looms after Dr Andrew Watt sent a ‘letter before action‘ to the prime minister Theresa May. The letter is designed to be used as an alternative to legal action but is realistically seen as a precursor to legal action.

The argument presented by Dr Watt is that according to s. 2 of the European Union Act 2011 requires that another referendum must be held before the UK can leave the EU. We can analyse this argument further by taking a quick look at section 2(1):

2              Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

At first glance it appears that there is a solid argument here. After all when the UK does leave the EU there will have to be a new treaty that will incorporate both the changes to the functioning of the EU as well as the result of any Brexit negotiations.

But let’s have a closer look at section 2(1)(c)…

Yes there certainly is a referendum condition but there is also something called an exemption condition and it is this that possibly provides Theresa May with an alternative to yet another referendum.

Essentially the exemption condition states that a referendum does not need to be held if the Act of Parliament that will approve the Treaty does not fall within section 4 of the Act.

With Brexit negotiations in such an early stage it is obviously difficult to know whether a new treaty will fall within section 4 but when we consider that the section is mostly concerned with the expansion of the EU’s powers it does seem unlikely that this will apply within the context of the UK’s withdrawal.

Furthermore the either/or nature of section 2(1) could also present some problems to Brexit as it is certainly possible that neither condition will apply. Indeed the referendum condition requires a provision explicitly calling for a referendum in the Act that approves the treaty.

What if no such provision is included or, taking it a step further, a provision is included that deliberately states no referendum is required. Such an outcome is likely if not certain given the views of the Conservative party and the result of the first referendum in June 2016.

This is not to say that Dr. Watt has no chance of success but it is difficult to claim that his case rests on solid legal ground. Realistically the best chance of a second referendum comes from political pressure within the House of Commons and also the House of Lords but if recent polling is to be believed then it is unlikely there will be any significant threat to Theresa May’s mandate for the next five years.