Article 50 challenge in the Court

The eagerly awaited court case concerning the use of the Royal Prerogative power to trigger Article 50 of the Treaty of Lisbon has now been heard.

R (on the application of Santos & Miller) v Secretary of State for Exiting the European Union (October 2016)

The eagerly awaited court case concerning the use of the Royal Prerogative power to trigger Article 50 of the Treaty of Lisbon has now been heard in a hearing lasting three days, the transcript of which runs to nearly 600 pages. The uncorrected transcripts of the hearing were provided within hours of each sitting. In this update, we summarise what the case is actually about, and the respective positions of the parties.  

What is the case about?

The hearing was an application for permission to bring judicial review proceedings and for a remedy of a declaration in relation to the limits of the power of the executive (the Government). The central issue was whether a Royal Prerogative power can lawfully be used by the Government to give the formal notice required under Article 50 of the UK’s intention to withdraw from the EU. The case is said not to be political and therefore does not directly consider the merits of the EU referendum result. The case considers, in depth, important constitutional issues relating to the interaction between the Government’s ability to utilise Royal Prerogative powers to remove rights that have been conferred by an Act of Parliament, in this case the European Communities Act 1972 (‘ECA 1972’).  

Who are the parties?

There are six parties to the litigation – two claimants, two interested parties, an intervener and the Secretary of State for Exiting the European Union. The groups can be summarised as follows:

Claimants: Ms Miller, a businesswoman and British citizen who resides in the UK who is ‘concerned about the constitutional issues raised’ and Mr Santos, a London hairdresser.

Interested parties: Mr Pigney and others (self styled ‘People’s Challenge’) who represent a diverse group of citizens including ‘an Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and a Gibraltarian, whose wife is Spanish, with family resident in Spain’.  AB, KK, PR and children whose interest arises in relation to children’s rights in the EU or as Zambrano carers (a person from a non EU state who is permitted to reside in the UK in order to enable a child, who is an EU citizen, to exercise the child's EU treaty rights).

Interveners: a group of Expat interveners whose interest arises because they either reside or have personal, family or business interests in other EU countries.        

What are the positions of each party?

The claimants, in broad terms all advance the proposition that above all, Parliament is sovereign and that no person or body can override or set aside the will of Parliament, not even the UK Courts. The triggering of Article 50 delivering formal notification to the EU of the UK’s decision to leave, will inevitably lead to a loss of a variety of rights for the claimants which have previously been provided for by Parliament through the enactment of such legislation as the ECA 1972. The claimants

contend that only Parliament can trigger Article 50 because of the impact on UK legislation and that such a step would be to overturn rights previously conveyed by Parliament, which is outside of the prerogative of the Crown. 

The Referendum Act 2015 failed to include measures that must be taken on the outcome of the referendum and the referendum is therefore not legally binding. Accordingly, it is argued, the Referendum Act 2015 does not circumvent the sovereignty of Parliament.

At the recent hearing before the High Court, the claimants argued in simplistic terms that there is no Prerogative Power in this context. In the alternative they contended that if it is held that a Prerogative Power does exist, it does not cover this issue, and finally, if it is held that there is a prerogative applying to this issue, that it would be an abuse to utilise the prerogative as this would be deemed to be circumventing the sovereignty of Parliament. 

The claimants went to some length to set out that their position was not one of challenge to the decision of the UK to leave the EU and that it was more akin to the preservation of rights and privileges currently enjoyed by the claimants. It was argued that whilst some of those rights currently enjoyed by the claimants could be replicated by Parliament, some could not. For example, Parliament could enact certain rights after the UK leaves the EU (such as employment law rights and equality rights via the Great Repeal Bill). Some rights may also be replaced subject to the terms of the negotiation deal (for example in relation to free movement). The main concerns centered around those rights that would be lost which are not within the gift of Parliament, most notably the right of a UK citizen to stand for election to the European Parliament or make a referral to the European Court of Justice, and some rights which are parasitic and are derived rights from the citizen’s directive. It was also argued that it would be contrary to the Union with Scotland Act for private and public law rights in Scots law arising from EU law to be changed without Parliamentary authority. 

The defendant argued that the claimants’ case is not about the protection of rights at all and that it in reality ‘seeks to invalidate the decision already taken to withdrawn from the European Union and to require that decision to be taken by Parliament’. The defendant submitted that the triggering of Article 50 and the notification of that decision to the European Council are well within the scope of the exercise of the Royal Prerogative power as they are acts in the making and unmaking of treaties in the international arena which is a matter reserved to the Crown. The use of the Royal Prerogative power gives effect to the will of the people expressed by the outcome of the referendum and it was clear that at the time of passing the Referendum Act that both the government and Parliament intended to act on the outcome whatever that may have been. The defendant went further and indicated that there was a real danger of the decision of the majority of the UK Electorate not being acted upon if the decision was to be left to Parliament. Although it was accepted that there would be some Parliamentary involvement in the Brexit process, with notification only being the first step in the process. 

Reversibility of the Article 50 notification was also considered. Whilst there is no specific authority, no party contended that the Article 50 trigger could be reversed when pushed, not least so that the other EU Member States have certainty. 

What happens next?

Understandably, the judgment has been reserved to an as yet unspecified date. Regardless of the content of the final judgment, given the importance of the issues involved, it is perhaps likely that the losing party will seek to appeal. It may be that permission is given to leapfrog the Court of Appeal and proceed directly to the Supreme Court, possibly before Christmas. One potential outcome of the hearing which could create even more instability would be a referral to the ECJ to seek clarification on what is meant by ‘in accordance with its own constitutional requirements’. This would rather ironically hand over to European judges fundamental questions about British sovereignty. We will keep a watching brief and will report back as soon as the judgment is handed down by the Court.

Kurt Rowe is an Associate in the Market Affairs Group and Dr Catriona Wolfenden is a Solicitor and Professional Support Lawyer. To discuss any of the issues in this update please email brexit.group@weightmans.com.

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