Brexit case ‘of fundamental constitutional importance’

Media captionGina Miller told Radio 4’s Today programme she had a strong case in court

The need for Parliament to give its approval before the Brexit process starts is of huge “constitutional importance”, the High Court has heard.

QC Lord Pannick said the case “raises an issue… concerning the limits of the power of the Executive”.

The High Court is considering whether ministers can invoke Article 50 of the Lisbon Treaty, the trigger for formal talk, without MPs passing a new law.

Critics said it was a “naked attempt to steal the referendum by the back door”.

Ministers argue they are entitled to act under ancient powers of Royal Prerogative.

Prime Minister Theresa May has said she will activate Article 50, formally notifying the EU of the UK’s intention to leave, by the end of next March. This follows the UK’s decision to back Brexit in June’s referendum by a margin of 51.9% to 48.1%.

The EU’s other 27 members have said negotiations about the terms of the UK’s exit – due to last two years – cannot begin until Article 50 has been invoked.

The judicial review, due to conclude on Monday, is being heard by the Lord Chief Justice of England and Wales, Lord Thomas.

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The case will be heard by the Lord Chief Justice Lord Thomas

Investment manager Gina Miller is among those contesting the government’s authority to proceed without recourse to Parliament – arguing the principle of parliamentary sovereignty underpins the constitution and the rule of law in the country.

Her legal team, headed by constitutional lawyer and cross-bench peer Lord Pannick, is arguing that invoking Article 50 will threaten the rights of individuals enshrined in the 1972 European Communities Act – the piece of legislation which paved the way for the UK to join the European Economic Community.

Only Parliament, they argue, can remove or reduce rights granted under law and Article 50 must have the consent of the House of Commons and the House of Lords.


By Clive Coleman, BBC legal correspondent

In today’s constitution the Royal Prerogative is basically a collection of executive powers held by the Crown.

They go back to medieval times but are now placed in the hands of ministers. They’re used, for instance, in some areas of foreign affairs which Parliament has left to the government.

But prerogative powers remain controversial because they’re exercised without any parliamentary authority.

The case has huge constitutional importance and should provide clarity on whether executive powers can, in effect, trump an act of Parliament.

Those bringing the case argue that legislation can only be altered by legislation. The government says it intends to give effect to the outcome of the referendum by bringing about the exit of the UK from the EU.

And that that is a proper constitutional and lawful step to take, using prerogative powers, in light of the referendum result and the democratic mandate it has provided.

Lord Pannick said the case was not concerned with the “political wisdom” of the country withdrawing from the EU and it was wrong to suggest that the legal challenge was “merely camouflage” for those who wanted to remain.

Ms Miller was entitled to say that “if we are to leave the EU then the steps to be taken which will deprive her of her rights under the 1972 Act, and other legislation, must be done in a lawful manner”.

He said she accepted that her challenge could only succeed “if we can satisfy the court that the defendant has no power to notify under royal prerogative powers”.

Lord Pannick argued that she sovereignty of Parliament meant that what Parliament did “is entirely a matter for Parliament”.

Earlier Ms Miller told BBC Radio 4’s Today programme the case raised “fundamental constitutional” issues.

“We are asking MPs to do the things we pay them for… did the people who voted to leave really vote… for the prime minister and a handful of her ministers to bypass Parliament?”

But ex-Conservative minister Dominic Raab said the challenge was fuelled by a “special kind of arrogance”.

Mr Raab, a former government lawyer, told Today: “We have had three debates already – the idea that Parliament is being side-stepped is ludicrous.”

He added: “But Parliament doesn’t get a veto over beginning the Brexit negotiations.”

In July, High Court judges ruled that Ms Miller should be the lead case in the action.

Other applicants include London hairdresser Deir Dos Santos, 37, as well as the People’s Challenge group set up by Grahame Pigney and a campaign group called Fair Deal for Expats.

The government, represented by Attorney General Jeremy Wright, will argue it is giving effect to the will of the people provided for in the 2015 EU Referendum Act authorising the poll and that was “clearly understood” before June’s vote.

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The attorney general will lead the government’s legal team

According to documents published this summer, ministers believe the use of prerogative powers once held by the Sovereign but now residing in the executive to enact the referendum result is “constitutionally proper and consistent with domestic law”.

For the courts to require Parliament to pass legislation to implement the outcome of the referendum would be an “impermissible” intrusion on its proceedings.

“The decision to withdraw from the EU is not justiciable,” they stated. “It is a matter of the highest policy reserved to the Crown.”

The hearing comes amid growing calls from MPs on all sides of the House for the UK’s blueprint for its Brexit negotiations to be subject to far greater parliamentary scrutiny.

While the government has not ruled out giving MPs a vote on the final settlement reached with the EU, it has said on several occasions that it will not hold a vote on the timing of Article 50 or its strategy ahead of negotations.

The losing side in the case is likely to launch an appeal. It has already been announced that any appeal will be fast-tracked to the Supreme Court to ensure a final judgement before the end of the year.

Brexit case ‘of fundamental constitutional importance’}

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