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Article 50 legal challenge: Q&A November 2016

Posted on 11 November 2016

Article 50 legal challenge: Q&A November 2016

On Thursday 3 November, the High Court ruled in favour of our client that the government acting alone cannot trigger Article 50 – the mechanism by which the UK starts the process of leaving the EU.

A summary of the judgment is available here.

Why did you take legal action?

Our client is seeking to ensure that the correct legal process is followed when the Government triggers Article 50. The Government must seek a full debate in Parliament and pass a new Act of Parliament before it can trigger an Article 50 notification. The High Court expressly adopted our client's position in its judgment handed down on 3 November 2016.

Who is your client?

Our client and the Respondent to the Government's appeal in the Supreme Court is Gina Miller.

How is the case being funded?

As in any other case, we do not disclose the details of our funding arrangements.

What does the High Court ruling mean?

The High Court has ruled that the Government, led by Prime Minister Theresa May, does not have the power to trigger Article 50 using the Royal Prerogative. The judgment also confirmed, in agreement with both parties, a number of other points: (i) the case focuses on a purely legal question, as opposed to any political issues, which is properly for the court to decide; (ii) neither the Referendum Act 2015 nor any other statute confers any express authority on the Government to give the Article 50 notice; (iii) once the Article 50 notice is given it cannot be withdrawn nor can it be conditional; and (iv) once notice is given some EU law rights incorporated into domestic law by the European Communities Act 1972 (the 1972 Act) will inevitably be lost at the point when the United Kingdom exits the European Union.

Does the judgment require an Act of Parliament?

Yes, the Government must seek an Act of Parliament before it can trigger an Article 50 notification. The most fundamental rule of the UK's constitution is that Parliament is sovereign and can make or unmake any law as it chooses. Since Parliament enacted primary legislation, the 1972 Act, only Parliament can unmake this legislation.

Does this ruling block Brexit?

This ruling does not block Brexit. The judgment clarifies the constitutional process that the Government must follow to enable Brexit to be commenced in a lawful manner.

Does the ruling derail the plan of the Prime Minister to trigger Article 50 in March 2017?

It is possible for the March 2017 timetable to be met.

What is the declaratory relief outlined in the judgment?

The Declaration is as follows: The Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union.

When is the Supreme Court hearing?

The Supreme Court has confirmed that the hearing will take place over four days from 5 – 8 December.  It can be viewed live here.

Will all eleven Supreme Court Justices be sitting?


Can other parties intervene in the Supreme Court hearing?

New interveners have joined the proceedings for the Supreme Court hearing. The additional interveners are: The Lord Advocate, Scottish Government; The Counsel General for Wales, Welsh Government; The Independent Workers Union of Great Britain and a written submission from Lawyers for Britain. In addition, 'Expat Interveners', George Birnie and Others who intervened in the High Court case have also been granted permission, and AB and A Child and KK, PR and A Child (anonymised); and Grahame Pigney and others.

Has the deadline passed for other interveners to be granted permission to join the proceedings?

Although there is no deadline in respect of applications to intervene, it is unlikely any other parties will be granted permission – the deadline for written cases from the interveners is Tuesday 29 November.

It is anticipated that, following that, the Supreme Court will be in a position to decide who it would be helpful to receive oral submissions from. 

How is the potential EEA challenge connected to the current A50 one?

As with Article 50, it's a legal challenge to the mechanism through which legislation is triggered. However it concerns a separate matter, regarding whether Britain will automatically leave the European Economic Area when it leaves the EU.

When will the Supreme Court deliver its judgment?

Currently, the Supreme Court is expected to deliver its judgment in early 2017.

Can the Supreme Court refer the case to the European Court of Justice?

This would depend on the arguments made before the Supreme Court.

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