Judicial review hearing starts over issue of whether Parliament should decide when to trigger Article 50

The hearing started yesterday in the High Court, at which three of the most senior judges in England and Wales will hear claims that the government cannot trigger Brexit without parliamentary approval.

The high court hearing in London is before the lord chief justice, Lord Thomas of Cwmgiedd, the newly appointed master of the rolls, Sir Terence Etherton, and Lord Justice Sales.

The two main claimants leading the judicial review challenge are Gina Miller, a businesswoman and philanthropist, and Deir dos Santos, a hairdresser. Both are British nationals. Ms Miller said the challenge was not an attempt to overturn the referendum decision. The case, she said, was intended to “answer a fundamental legal question about the powers that can be used by the prime minister and whether they can side-step parliament”.

The legal dispute is over who has authority to notify Brussels formally that Britain is withdrawing under article 50 of the Treaty on European Union (TEU). Article 50 states that any member state may leave “in accordance with its own constitutional requirements”, an undefined term that has allowed both sides to pursue rival interpretations.

The case could open deep rifts in the consensus over the UK’s unwritten constitution. If the judges concluded that MPs should decide, the majority might not be in favour of leaving, according to an article in The Guardian.

The government maintains that the decision to depart has been taken by the referendum on 23 June and that its executive powers, under the royal prerogative, are sufficient for David Davis, the Brexit secretary, to give notice on behalf of the cabinet.

The attorney general, Jeremy Wright QC, who will lead the government team, also asserts that initiating withdrawal does not change any UK laws and that the consequences will be subject to future negotiation and parliamentary scrutiny. The government’s lawyers also argue that the courts are “ill-suited” to decide on the matter.

Whoever loses each case is expected to appeal directly to the UK’s supreme court in London in December. Because of the short period available before March, when Theresa May says she will trigger Brexit, provision has been made for the claims to leapfrog the court of appeal and go directly to the supreme court. 

Direct Access Barrister - myBarrister