High profile constitutional battle over triggering Art 50
Whatever the outcome of this week’s Art 50 case, the claimants have already won one victory, according to David Greene, NLJ consultant editor and partner at Edwin Coe, who acted for one of the claimants.
The High Court is expected to hand down its judgment in Santos and M v Secretary of State for Exiting the European Union in the next few weeks.
Greene said: “It remains to be seen whether the court agrees with the application but it might be said we have already had a victory because the government’s counsel indicated that Parliament will have a vote at the end of the process.
“What we say is that is not enough because it will be faced with a fait accompli at that point; the exit timetable will be already set. We believe we had the better arguments but these are difficult issues on the constitutional dynamic between the courts and the Executive and the Executive and Parliament of huge constitutional importance on which the court must decide.”
Professor Michael Zander QC, writing on the case for NLJ, says he hesitates to express an opinion on which side is likely to win.
In a detailed analysis of the arguments presented by both sides, Zander notes that the parties agreed on several important issues. They agreed that giving notice under Art 50 is irrevocable or, as counsel for the claimants Lord Pannick QC described, like firing a bullet which would inevitably reach its target by withdrawal after two years, unless all 27 other member states agreed on an extension.
The parties also agreed that: Art 50 notification cannot be made conditionally; that the referendum was advisory with no binding legal effect; and that there were three categories of rights at issue, each affected to a different degree.
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