Who is in charge of Brexit – the Government or Parliament ?

The Article 50 Judicial Review Case

This notice appears in the Cause List for the Queen’s Bench Administrative Court today:-

Thursday 13 October, 2016
At  half past 9
Applications for Permission
CO/3281/2016 The Queen on the application of Santos v Secretary Of State For Exiting The European Union
CO/3809/2016 The Queen on the application of Miller v Secretary Of State For Exiting The European Union

Three very senior Appellate Judges – The Right Honourable The Lord Thomas of Cwmgiedd (Lord Chief Justice) , Sir Terence Etherton (Master of the Rolls) and Sir Philip Sales (Lord Justice of Appeal) are sitting as a Divisional Court to hear applications for permission to apply for Judicial Review of the decision of the Secretary of State for Exiting the European Union that an Article 50 Notice may be given to the European Union using prerogative powers rather than on the basis of an authority conferred by an Act (or a Resolution) voted by Parliament.

Normally, judicial review applications are first heard by a single Judge of the Queen’s Bench Division of the High Court.  The decision of the Court to list the matter before a very high powered Divisional Court is a recognition of the constitutional importance of the case.

The Solicitors for the Claimants are  Mishcon de Reya and their Counsel are   Baron David Pannick QC,  Rhodri Thompson QC with Tom Hickman and Anneli Howard.

Interested Parties (not mentioned in the Cause List)  have instructed Bindmans  LLP and their Counsel are: Helen Mountfield QC, Gerry Facenna QC with Tim Johnston and Jack Williams

Counsel for the Secretary of State are:  HM Attorney General (Jeremy Wright QC MP),  James Eadie QC and Jason Coppel QC  with Tom Cross and Christopher Knight.

With the exception of the Attorney General (whose pre appointment practice was mainly before the criminal courts) this line-up of counsel represents la crème de la crème of those who regularly appear in the administrative courts, but the two tenors of the bar  will probably be David Pannick QC for the Applicants and James Eadie QC for the Secretary of State.

The issue before the Court is whether the service of an Article 50 Notice should be preceded by either an Act of Parliament or a Resolution (as recommended by The Report of the Constitution Committee of the House of Lords) or whether the Secretary of State may proceed to serve the Article 50 Notice using prerogative powers.

See this in the Guardian:” Court battle looms over Brexit legality – Senior judges will hear claims that the government cannot trigger article 50 without parliamentary approval ”.

See also this in the Financial Times: “May’s push to avoid Commons vote on Brexit faces High Court test – Challenging legal review of prime minister’s strategy begins“.  This FT article gives a rather fuller explanation of the issues before the Court.  At the end of the piece there is an apposite quotation from Nicholas Bell, a partner of Bircham Dyson Bell:-

The answer to this question will fill in another part of our unwritten constitution, so the Supreme Court have cleared their diaries for early December to hear the inevitable appeal. If they find that a parliamentary act is needed to trigger Article 50, this will seriously jeopardise the prime minister’s plan to start the process next March.

The Background

The Cameron Government decided to hold a referendum on the UK’s Membership of the European Union in an effort (i) to reduce the influence of UKIP in national affairs and (ii) to placate a minority of Conservative backbenchers (who can be described as “the Swivel-Eyed Loons”) who also wanted the UK to withdraw from the EU.

While many countries have constitutions which provide for referenda and what happens as a result, the procedure is alien to the British Constitution.  Where an Act of Parliament providing for a referendum prescribes what legislative changes will take effect based on the outcome, there is no problem with the legal effect of the result.  However, where there are no such provisions (as in this case) the referendum is advisory in nature and it has no legal effect  (although there would very likely be repercussions in electoral terms were Parliament to ignore the will of the people).

The Cameron Government was confident that it would win the Referendum Vote.  It was wrong about that.

Brexit BusPerhaps the Prime Minister was unwise to allow members of the Government and Members of his party to chose whether to campaign against the government position.   Boris Johnson and Michael Gove and others were certainly effective campaigners for the Leave Campaign.

BreakFarUKIP’s  focus on a fairly nasty anti-immigration campaign certainly had an impact on the outcome and matters were certainly not helped by the inability of the Labour Party to mount an effective campaign among its supporters.  The reasons why the Remain Campaign lost can only be ascertained by opinion polling which may or may not be accurate.  But immigration issues and a general desire to kick the government in the teeth certainly played a part.

On 23rd June 2016 the result was close: Vote Leave: 52% – Vote Remain: 48%  a majority of just 4% with a turnout of 78% and more than 30 million people voting.   England and Wales returned Leave majorities – Scotland and Northern Ireland returned Remain majorities.

david-cameron-resigningOn the day after the Referendum, David Cameron announced that he would tender his resignation to the Queen as soon as the process of electing a new leader of the Conservative Party was complete and in due course David Cameron gave effect to that announcement by tendering  his resignation to the Queen who then sent for Teresa May and asked her to form a government.

It quickly became apparent that the Cameron government had not prepared any plans for what would happen in the event the country voted to leave.  Nor had there been any serious  consideration of the economic impact on the UK of leaving the European Single Market and the Customs Union.

The New Statesman has this:  “Leader: David Cameron’s tarnished legacy – The former prime minister will be remembered for losing the EU referendum. But this was far from his only failure. ”  That article refers to a rather cruel (but accurate) remark by Michael Portillo which can be found in this article: “Cameron’s blunder and the Conservative Party leadership“.

Cameron took a gamble, lost and did the right thing by resigning.  It remains to be seen whether Teresa May will limit the damage caused by the vote to leave the EU.  At the moment things are not looking good.  She is right to accept the verdict of the Referendum but there is a world of difference between a “hard” Brexit and a “soft Brexit”.  The Article 50 dispute is about having that issue determined by Parliament as a whole and not by a government in hock to the Swivel Eyed Loons.

The Opening of the Case

The Financial Times has this account of the opening of the case:-

MPs’ vote on Article 50 for Brexit ‘fundamental’, court hears – Legal battle begins over whether May has right to trigger UK exit without putting it to parliament

The issues in this case are quite substantial and it will take several days.  The Secretary of State’s case will not be opened until Monday of next week.








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