Main arguments of the Article 50 legal challenge set out - one week before Court hearing
06 October 2016

Main arguments of the Article 50 legal challenge set out - one week before Court hearing

A three-day judicial review will be held in the High Court before the Lord Chief Justice on Thursday 13, Monday 17 and Tuesday 18 October to clarify the constitutional process necessary to trigger Article 50 and enable the UK to leave the EU. Ahead of this, the main arguments of the Lead Claimant Ms Gina Miller have been set out, and a full version of the skeleton argument has been released by her legal team.

The case concerns whether the Government has Royal Prerogative powers to serve notice in the absence of statutory authorisation by Parliament. The Lead Claimant argues that it does not, because:

  1. the purpose and legal effect of notification will be to extinguish or at least substantially reduce the rights and duties currently part of our Constitution through the European Communities Act 1972
  2. only Parliament can decide whether or not to do this
  3. prerogative powers cannot be used to pre-empt such a decision by Parliament and, in particular, whether to continue with the statutory scheme set out in the 1972 Act which grants rights to individuals such as the Lead Claimant.

The arguments set out in the legal challenge state that the limits of the powers of the executive branch of Government is a question of constitutional importance. The European Referendum Act 2015 was, as a matter of law, advisory - nowhere in the 2015 Act does it specify the consequences that should follow from the referendum result. The Article 50 notification by Royal Prerogative would remove a large number of rights from our law, including those under the EU Charter of Fundamental Rights, without Parliamentary approval.

The Great Repeal Bill announced by the Prime Minister on 2 October has no relevance to this case, which concerns whether the Government can use prerogative powers to serve notice.

View the full skeleton argument here.

View a summary of the skeleton argument here.