Tuesday, 19 July 2016

Treaty on European Union Article 50 – High Court application

Tuesday 19 July, 2016

APPLICATION(s) CO/3281/2016 The Queen on the application of Santos v Chancellor For The Duchy Lancaster

This is the start of the legal process to determine whether, as a matter of prerogative power, the government may give notice to the EU that the UK has reached a decision to withdraw.  (It is the view within government that prerogative powers in relation to foreign affairs and treaties are sufficient).  

Alternatively, do the UK constitutional requirements necessitate the passage of an Act of Parliament to authorise Ministers to give the notice.  (No legal doubt whatseoever could apply to this course of action). 

Let's be crystal clear - this is NOT an attempt by anyone to prevent Brexit.  It is a case about the legal process to be followed before notice under Article 50 may be given to the EU.  There are links

to various legal viewpoints in Law and Lawyers 27th June 2016 - The role of Parliament under Article 50

The Guardian 19th July looked at the court hearing - Theresa May does not intend to trigger Article 50 this year, court told.  The case in which Mishcon de Reya are the solicitors will be the lead case - (previous post).  At least seven private actions arguing that only parliament, and not the prime minister, has the authority to invoke article 50 have been identified to the court.

In a practical sense, the government was always unlikely to be in a position to trigger Article 50 until there was some form of Brexit plan addressing matters such as how the UK sees its future relationship with the EU.  The Prime Minister has said that the government is committed to engaging with the Scottish Government in the forthcoming negotiations about the UK’s exit from the European Union.  (Similarly, with Northern Ireland).  Given that Scotland (and Northern Ireland) voted to Remain, considerable difficulties lie ahead and it would be foolhardy to try to forecast how this might turn out.

The case(s) will be heard before the Lord Chief Justice in October.  At this stage it seems inevitable that the matter will end up in the Supreme Court of the UK.

In Parliament:

This legal question has been touched upon in some Parliamentary debate but it has not been answered definitively.

House of Commons 11th July 2016 - Urgent question on Parliamentary approval before triggering Article 50

House of Lords debates on the EU Referendum

Post from The Constitution Unit:

Robert Hazell and Jack Sheldon - What role will Parliament have in triggering Article 50 and shaping the terms of Brexit

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

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