In one of the most important constitutional cases in generations, opponents argued the prime minister cannot use royal prerogative to trigger Article 50 of the Lisbon Treaty and start the UK’s exit from the EU.
Government lawyers argued prerogative powers are a legitimate way to give effect “to the will of the people” who voted by a clear majority to opt for Brexit in the June EU referendum.
However the High Court disagreed and said May unlawfully intended to by-pass parliamentary scrutiny while taking irreversible steps to remove statutory rights granted to UK citizens under the European Communities Act 1972, which made EU law part of UK law.
What Is Article 50?
Withdrawing from the European Union requires any member state to trigger Article 50 of the Treaty on European Union (TEU).
Article 50 states that: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
Before Article 50 was added to the Lisbon Treaty, which came into force in 2009, there was no clear legal path for a country to voluntarily withdraw from the EU.
No country has ever used Article 50.
Triggering Article 50 would only “fire the starting gun” for an expected two years of negotiations and not of itself change any common law or statutory right enjoyed by citizens.
Theresa May announced at the Conservative Party conference that she intends giving an Article 50 notification by the end of March 2017.
What Is The Article 50 Legal Challenge?
The challenge argued the prime minister cannot use royal prerogative to trigger Article 50 of the Lisbon Treaty and start the UK’s exit from the European Union.
Opponents of May’s decision to trigger Article 50 are drawn from all walks of life and led by investment fund manager and philanthropist Gina Miller.
Their teams of lawyers argued at the hearing in London that the prime minister unlawfully intended to by-pass parliamentary scrutiny while taking irreversible steps to remove statutory rights granted to UK citizens under the European Communities Act 1972, which made EU law part of UK law.
But the country’s top legal officer, Attorney General Jeremy Wright QC, said parliamentary consent for Article 50 was not required following the clear public referendum vote in favour of Brexit.
The Government was seeking “to give effect to the will of the people” and that was “wholly within the expectation of Parliament”, he said as he appeared on behalf of Brexit Secretary David Davis.
James Eadie QC, another senior member of the Government legal team, said any new treaty agreement with the European Union following Brexit would “very likely” have to be ratified by Parliament.
In submissions that caused the pound to rally, Mr Eadie said the “view at the moment” was that ratification was likely if the royal prerogative was used to launch the Brexit process.
What Happens Now?
While Remainers have undoubtedly been given a boost by the court ruling, the government was immediately given the go-ahead to appeal against the ruling at the Supreme Court, meaning any parliamentary vote is on ice.
International Trade Secretary Liam Fox said he was “disappointed” at the High Court decision, adding: “the Government is determined to respect the result of the referendum”.
A further hearing is now expected next month, but even if the court decision is not overturned, it’s unclear if there would be a snap vote in parliament.
Parliament is still highly unlikely to block Brexit given the June 23 referendum result - but the ruling does give MPs the ability to demand greater detail from the government on what its negotiating strategy with Brussels is and what new relationship with the EU it will seek to forge.
Downing Street also claimed today it was still possible to trigger Article 50 by March 2017.