Brexit & the Law: A topical legal discussion on the Article 50 procedure and recent legal challe

Much like Marmite itself, Brexit has divided the nation and - love it or hate it - its dominance in newspapers, TV coverage and on social media over the last month has left a bitter taste in the mouths of many. In the midst of it all, it can be difficult to determine where we are procedurally, how we got here and the impact of the recent legal challenge over the ‘Article 50’ procedure.

To put this into some context, on 23 June 2016 the UK decided – 52% to 48% - to end its membership with the European Union (EU) by way of a referendum, with Britain’s exit coining the term ‘Brexit’. The marginality and breakdown of the results across the UK has been the subject of much criticism developed by anti-Brexit groups; 53.4% of England voted to leave the EU, as did 52.5% of Wales, but, conversely, the majority of Scotland and Northern Ireland backed remaining in the EU. Such criticisms emphasise the divide in the country and the difficulty that the new Prime Minister, Theresa May, will face in negotiating a new deal with the EU that is reflective of the wishes of not only the 52% majority, but also those of the close runner-up. Philip Hammond, former Foreign Secretary and now Chancellor, has suggested it could take up to six years for the UK to complete its exit from the EU, with agreement needed by all 27 national parliaments consumed within it.

Negotiations on a new deal between the UK and the EU can only begin once the UK has invoked Article 50 of the Lisbon Treaty, giving both the UK and the EU two years to agree the terms of the exit; though, Article 50(3) provides that a longer timescale may be mutually agreed. Once triggered, the government will aim to enact a Great Repeal Bill to, in short, enable Parliament to decide on the EU laws to keep, change or repeal. The requirements to trigger Article 50 may therefore seem straightforward, though, as a legal case now stands against the government in its procedure to trigger the Article, such a presumption could not be further from the truth.

Described in the Guardian as “the most significant constitutional challenge in a generation”, two British citizens, Miller and Dos Santos, have won a case against the government in which it argued that the government alone does not have authority to give formal notification under Article 50. The case was heard in the High Court of Justice on 13 October 2016, ending on 18 October 2016, and the core dispute, led on behalf of the claimants by Lord Pannick QC, is that triggering Article 50 would render the European Communities Act (ECA) 1972 – in which EU law could apply domestically under section 2 - as void and such action by the government alone would cut across Parliament’s intention in enacting this Act. In doing so, this would undermine Parliamentary sovereignty, the fundamental cornerstone of the British (unwritten) constitution, within which operates the procedure whereby only Parliament may make or unmake any laws. Conversely, the government argued that use of the Royal Prerogative power of foreign affairs enables it to bypass Parliament in triggering Article 50 and, further to this, we are a member of the EU because of the Royal Prerogative and thus can leave the EU on this same basis. In short, the ability of the government to ratify treaties remains a prerogative power and allows the government to conduct foreign affairs on the Sovereign’s behalf.

Jeremy Wright QC, acting on behalf of the government in the case, claimed that the challenge is an attempt to invalidate the referendum result. Wright stated: “The prerogative powers are available to use, we say, to give clear effect to the wishes of the people of the UK that we should begin the process of leaving the EU”. James Eadie QC, also representing the government, stated that invoking Article 50 “would not have any immediate effect on UK law” and doing so would not undermine the sovereignty of Parliament. Their arguments concluded in suggesting that the claimants were denying constitutional flexibility whereby Parliament has consciously left certain powers in the hands of the government.

The claimants, Dos Santos and Miller, exploited the Bill of Rights 1689 in their argument noting that it “expressly prohibits the use of the prerogative in circumstances where its exercise would ‘suspend’ or ‘dispense’ statutory law”. Miller has insisted that it is not an attempt to invalidate the referendum result but rather it is 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 High Court Judges gave their judgement on 3 November 2016, stating that “we hold that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50”. Since the judgement, both the claimants and the judges have been subjected to severe media attacks, particularly by keen Brexiteers, despite the fact that the decision will almost certainly not stop Brexit. The decision is merely that of process, ensuring the opportunity for MPs to engage in a full debate before article 50 is triggered. The PM has said she accepts the “logical conclusion” of the judgement, but has confirmed the government will appeal against the decision. It has been granted leave to appeal straight to the Supreme Court, a court said to be sensitive to public opinion about its role in politically influenced judgements. There is even a possibility that the decision could be further appealed to the European Court of Justice as the EU’s highest court of appeal, which could technically mean the EU can decide on the limits of sovereignty for the UK parliament.

The lack of defence put forward by the Lord Chancellor, Liz Truss, to the media attacks on the high court judges following the judgement, has certainly not gone unnoticed and has even been said to undermine the judiciary of which she has a constitutional duty to protect. Truss, as justice secretary, has remained silent whilst personal assaults flaunt the front pages.

Whilst the final outcome of this case hangs in the balance of the Supreme Court hearing in early December, one certain conclusion is sure to be drawn from this. The floor has opened for many more debates on Britain’s unwritten constitution, particularly in relation to how Parliament is - and should be - sovereign, the role of the executive within this to act on the will of the people and the role of the judiciary in giving rise to Parliament’s intentions.

By Molly Bishop