Brexit legal challenges

Angelica Hymers, Browne Jacobson

Last month’s referendum on the UK’s membership of the EU resulted in a decision to leave. Since then, politicians have confirmed their intentions to press ahead with negotiations on leaving the EU, although at this stage there is no clarity on what the new relationship would look like. However, a claim has been issued, and a number of other arguments have been raised which aim to challenge the Brexit process. We consider the claim issued on behalf of Deir Dos Santos, a London hairdresser, which had its preliminary hearing on 19 July.

The claim argue that:

  1. The referendum result is only advisory and there is no legal obligation on parliament to give effect to the referendum decision.
  2. Only parliament and not the prime minister can authorise the Article 50 process which will start the UK’s withdrawal from the EU. The prime minister does not have the powers to trigger the Article 50 process without the consent of parliament by way of an act of parliament (The Article 50 process requires that the UK triggers Article 50 by giving formal notice of its intention to withdraw from the EU, at which point negotiations will begin and must conclude within two years unless an extension can be agreed by all EU member states. During the process, the UK would remain a member of the EU but after the two year period expires, unless an extension is agreed the UK leaves the EU).

This case, and the similar claim proposed by Mishcon de Reya on behalf of a number of concerned citizens, argues that the decision to trigger Article 50 rests solely with parliament as the elected representatives of the people. If the Article 50 process is triggered without parliamentary scrutiny, consultation with the devolved administrations and ultimately the consent of parliament then it would be unlawful.

The case hinges on the court’s view of the powers of the prime minister and how far the royal prerogative can be used without the consent of parliament to undermine a UK act of parliament. This is because EU law applies in the UK by virtue of the European Communities Act 1972, and so to trigger Article 50 and start the process of the UK withdrawing from the EU would undermine the European Communities Act 1972. Usually, an act of parliament can only be amended or repealed by another act of parliament. We understand that the government is advised that there is no requirement for the prime minister to have parliamentary approval to start the process.

The exercise of the royal prerogative by prime ministers has long been an issue of contention in the UK, primarily because there is a lack of clarity around the roles and powers of the prime minister which are based on convention and usage but are not defined, and so the claim raises wider constitutional issues. If the court were to determine that the royal prerogative could not be used in this manner, then ultimately parliament would need to vote on whether the UK should leave the EU, although it is likely that given the wide ranging consequences for the UK, the decision would be likely to be appealed which means that it could be years before a conclusion is actually reached. Politically, this could put the UK in a very difficult position, because the government has confirmed its intention to press ahead with Brexit and the EU and a number of its member states have expressed the view that the Article 50 process should begin as soon as possible. The government’s current position is that it will not invoke the Article 50 process this year, but that may of course change, in which case the claimants must be duly informed and allowed time to respond accordingly.

At the preliminary, during which the court named Gina Miller as the lead claimant, it was stated that the government has no intention of invoking the Article 50 process this year (which may of course change) and the court confirmed the full hearing will be heard in front of the Lord Chief Justice in October (exact date to be confirmed).

So for now then it’s a case of ‘wait and see’ what happens next. We will keep you updated!