Article 50 challenges in Court today

Today sees the start of the hearing in the High Court of the so-called “Article 50 challenges” – the judicial review proceedings brought by two claimants (and supported by several groups of interveners) which argue that a Parliamentary vote is needed before the Article 50 process for Britain leaving the EU can be triggered. The hearing will not finish today but will continue on 17th and 18th October.

The Court

The challenges are being heard not by a single High Court Judge, as most judicial reviews are, but by a very high-powered Divisional Court, consisting of the Lord Chief Justice (Lord Thomas), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. A “leapfrog” appeal to the Supreme Court (i.e. direct to the Supreme Court and bypassing the Court of Appeal) has already been arranged for December 2016.

The arguments

The Government’s position is that Article 50 can be triggered using prerogative powers – meaning essentially that this is a matter for the executive alone.

The Claimants dispute this, and raise a number of issues, including:

• Can the Government notify the decision to withdraw pursuant to royal prerogative powers without Parliamentary approval or are those historic powers limited? In particular:
  • Has any executive royal prerogative power to do so been removed by legislation, in particular constitutional statutes such as the European Communities Act 1972, the Bill of Rights 1689, the Acts of Union and the statutes creating the devolution settlements for Northern Ireland, Scotland and Wales?
  • Does the royal prerogative extend to allowing the Government to remove fundamental citizenship rights derived from EU law without Parliamentary authority?
• Would any exercise of the prerogative be abusive by undermining Parliamentary Sovereignty, the proper role of the Executive in the constitution, and/or the rule of law?

There is also a dispute about whether constitutionally-valid decision has already been made for the UK to withdraw from the EU.

If you are interested in the detail of the arguments, the principal parties’ skeleton arguments can be found here:

The Government’s skeleton argument

The People’s Challenge clarification note

The People’s Challenge skeleton argument

Lead claimant skeleton argument

Three of our colleagues are involved: Anneli Howard (together with Lord Pannick QC, Rhodri Thompson QC and Tom Hickman) for the lead Claimant, and Gerry Facenna QC and Jack Williams (together with Helen Mountfield QC and Tim Johnston) for the Peoples Challenge interested party.