Art 50: the battle begins

A constitutional dispute over who is entitled to trigger Art 50 is due to be heard by Lord Thomas, the Lord Chief Justice, in the High Court this week.

Gina Miller and Deir Dos Santos—represented by solicitors Mishcon de Reya, Edwin Coe and Bindmans—will challenge the right of the government to begin the process of withdrawing the UK from the EU without a vote in Parliament.

The case centres on whether Prime Minister Theresa May can exercise the Royal prerogative and act unilaterally or whether only Parliament can reverse rights that it bestowed, namely the citizenship rights introduced by the European Communities Act 1972. Lord Thomas will also consider whether the EU referendum outcome was binding or merely advisory.

The claimants’ arguments include: that the prerogative power has been implicitly abrogated by domestic statutory provisions; if prerogative does exist then it does not extend to abrogating or removing fundamental rights such as citizenship; and removing fundamental rights derived from EU membership would be an abuse of prerogative power.

The government’s case includes the points that giving notice under Art 50 is an administrative act within the executive’s power, that the decision to leave the EU is not justiciable, and that commencing the Art 50 process would not change any common law or statute.

Writing in NLJ this week, Michael Zander QC, Emeritus Professor of the LSE, says: “A crucial issue will be how the Art 50 notification should be regarded. The government will contend that it does no more than notify. The claimants will argue that in reality it has serious effects and that the court should have regard to the substance not the form.”