High
court to declare if government has right to trigger Brexit
Verdict
on Thursday will determine whether or not the UK’s decision to
leave European Union must be subject to a vote by parliament
Owen Bowcott Legal
affairs correspondent
Thursday 3 November
2016 04.23 GMT
The lord chief
justice is to deliver the high court’s momentous decision on
whether parliament or the government has the constitutional power to
trigger Brexit.
After less than
three weeks considering the politically charged case with two other
senior judges, Lord Thomas of Cwmgiedd will read out a summary of
their decision at 10am on Thursday to a packed courtroom in London’s
Royal Courts of Justice.
In order to prevent
leaks of the market-sensitive ruling, which involves a large number
of parties, preliminary drafts of the judgment have unusually not
been sent out in advance to the lawyers.
The outcome of the
case, which ventures into constitutionally untested ground, will
resolve whether MPs or ministers have the authority to formally
inform Brussels about whether the UK intends to leave the European
Union.
The legal dispute
focuses on article 50 of the treaty on European Union, which states
that any member state may leave “in accordance with its own
constitutional requirements” – an undefined term that has allowed
both sides to pursue rival interpretations.
The arguments
deployed during the three-day hearing last month appear, at the very
least, to have reinforced political pressure for parliament to be
given a greater role in negotiating Brexit.
Whether the high
court finds in favour of the claimants or Theresa May’s assertion
that the prime minister has power under the royal prerogative to
inform Brussels of the UK’s intention to leave, one side or the
other is likely to appeal to the supreme court.
However, there has
been speculation that the government could decide not to appeal if it
loses, calculating that enough MPs will feel bound by the result of
the referendum to vote to leave the EU. There may be stiffer
opposition in the House of Lords.
A case heard in the
high court would normally go up to the court of appeal, but
arrangements have been made for the case to “leapfrog” directly
to the supreme court if permission is granted.
Space has been
cleared in the supreme court’s diary for a possible hearing on 7
and 8 December. It would be heard by at least nine justices; an odd
number is required to prevent a tie.
Because the initial
case was heard in the high court, it has not been televised. The
three judges who considered the challenge were the lord chief
justice, Lord Thomas; the master of the rolls, Sir Terence Etherton;
and Lord Justice Sales.
The two lead
claimants are Gina Miller, a businesswoman and philanthropist, and
Deir dos Santos, a hairdresser. Both are British nationals.
They have been
supported by other interested parties, including the crowd-funded
People’s Challenge, whose members live in England, France,
Gibraltar, Northern Ireland, Scotland and Wales. It has to date
raised more than £100,000 from almost 5,000 supporters to finance
the case. Another group, Fair Deal for Expats, is backed by British
expatriates living abroad in 10 EU states.
British expats
challenge EU head over ban on negotiations with UK over Brexit
Read more
A related challenge
heard in Northern Ireland’s courts – emphasising the complexities
of devolution legislation – has already been won by the government.
That challenge may also be appealed to the supreme court and joined
with the London claims.
Lawyers for the
claimants were relatively upbeat about their prospects at the end of
the hearing in mid-October. The challenge has been described as one
of the most important constitutional cases in generations.
At the the
Conservative party conference, May said she intended to trigger
article 50 by the end of March 2017.
Opening the case for
the government, the attorney general, Jeremy Wright QC, said that the
claimants were attempting to invalidate the referendum result.
In their final
submissions, government lawyers revealed that parliament is “very
likely” to be asked to ratify any future treaty agreement with the
European Union.
The lack of
agreement over fundamental political principles has prompted concerns
that the UK’s unwritten constitutional arrangements may need to be
updated.
In a speech released
on Wednesday, the president of the supreme court, Lord Neuberger,
suggested that “there is undoubtedly a case for saying that the
time has come for the United Kingdom to adopt a formal written
coherent constitution.
“However, in that
context, the typically British and pragmatic argument ‘If it ain’t
broke, don’t fix it’, has obvious resonance. Having said that,
there are some people who feel that it is broke, and others who feel
that there is a duty to act before it gets broke.
“But, even those
people must accept not merely that the grass always seems greener on
the other side of the fence, but also that experience shows that the
fact that a particular arrangement works well in one country, even in
most countries, does not necessarily mean that it will work here.”
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