Article 50 Challenge: Update from Day Two

18 Oct 2016

The hearing continued yesterday of the judicial review challenging the Government’s position that it can trigger Article 50 without recourse to an Act of Parliament. The full transcript is available here, or you can read our summary below.

The day began with the Court raising the issue that the lead claimant, Ms Gina Miller, has received threatening and abusive emails. The Lord Chief Justice said that this was “wholly wrong” and that if “this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone“.

Helen Mountfield QC continued her submissions, on behalf of the People’s Challenge, that triggering Article 50 will inevitably remove a range of fundamental rights, which apply directly to UK citizens and which are recognised in domestic law, and that removing rights in this way falls within the domain of Parliament rather than the Crown. She also argued that using the royal prerogative to trigger Article 50 would be contrary to the English Bill of Rights, the English and Scottish Acts of Union, and the devolution statutes.

Patrick Green QC appeared for the “Expat Interveners” – persons residing in other EU countries with EU law rights in those countries derived from UK citizenship – and focussed on the effect of triggering Article 50 on their rights of residence and right of access to healthcare.

The Attorney-General, Jeremy Wright QC MP, setting out the Government’s case emphasised the political history to the referendum: that it was a manifesto pledge given by the Conservatives in the 2015 General Election, which they won; that the referendum was established by an Act of Parliament and gave a clear majority in favour of Leave; and that since the referendum the Government’s clear position has been that the referendum result would be acted upon. He argued that this was not, as the Claimants argued, a narrow procedural challenge, but “in reality” an attempt “to invalidate the decision already taken to withdraw from the European Union and to require that decision to be taken by Parliament“. On the technical point of law, the Government argued that the Claimants had overstated the principle that the prerogative may not be exercised inconsistently with statutory rights; that the exercise of prerogative powers in this case would not in fact be inconsistent with the relevant statutory scheme; and that the case was not properly justiciable by the Courts. It will continue with its submissions on the points regarding citizenship rights today.

One of the most significant points of the day was in fact one which was not in dispute: early in the Government’s submissions the Court asked whether it agreed with the lead Claimant’s position that an Article 50 notification is unconditional and, once triggered, cannot be withdrawn by the UK. The Attorney-General indicated that the Government agreed with that proposition. If the Court is unsure on the point it may still consider whether it needs to be referred to the CJEU, on which my colleague George Peretz QC has written. But the Government’s position is clear: once it hits send on the Article 50 email, it can’t change its mind.