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Legal Brexit Challenges Government Loses Article 50 Brexit Challenge but Defeats Northern Irish Judicial Review

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Legal Brexit Challenges Government Loses Article 50 Brexit Challenge but Defeats Northern Irish Judicial Review Legal Brexit challenges Government loses Article 50 Brexit challenge but defeats Northern Irish judicial review R on the application of (1) Gina Miller (2) Dier Tozetti Dos Santos (Claimants) and Secretary of State for Exiting the European Union (Defendant) and others. In the matters of an application by Raymond McCord, Steven Agnew and others for leave to apply for Judicial Review. Background - the government faced two distinct legal challenges in relation to the triggering of Article 50 notification, brought in Belfast and London respectively - both applications argued for the sovereignty of Parliament and claimed that the UK Government cannot trigger Article 50 (thereby inevitably and irrevocably taking the UK out of the EU) by using the Royal Prerogative. This issue was stayed before the High Court in Belfast pending the outcome of the English proceedings - the Northern Ireland applications also considered issues unique to Northern Ireland, including considerations relating to powers devolved to Stormont and considerations arising out of the Good Friday Agreement - both cases heard in October 2016 - judgment delivered in Belfast on 28 October 2016 in favour of the Government - judgment delivered in London on 3 November 2016 in favour of the Claimants The English judgment The key question before the High Court in London was whether the Government can give notice to the European Council of the UK’s decision to leave the EU under Article 50 using its Crown prerogative powers (i.e. without referring the question to Parliament) - it was claimed by the Government that notice to invoke Article 50 could be given using the Crown’s prerogative powers; it being an established principle that international relations and treaties fall within the scope of these powers. As such, the Government submitted that the decision to invoke Article 50 was not affected by the fundamental principle of parliamentary sovereignty and did not require parliamentary approval - the Court disagreed with this contention. They confirmed that the making and unmaking of international treaties falls within the scope of the prerogative, as such arrangements would normally have no impact on domestic law. However, the triggering of Article 50, being irrevocable, would inevitably lead to the loss of rights granted by Parliament under the European Communities Act 1972 (“ECA”) - further, the use of the prerogative in this way would therefore undermine the will of Parliament as expressed in the ECA and would violate the principle of parliamentary sovereignty - the Government could not use the prerogative power to change domestic law unless it had been specifically granted this power by Parliament. It was clear that the ECA had granted no such power - additionally, Parliament had a vote on the UK joining the EU in 1972, so there is no convention of the Crown’s prerogative being used in legislation relating to the EU - for these reasons, the Court decided that the Government does not have the power under the Crown’s prerogative to give notice under Article 50 - the judgment was given unanimously by three of the country’s most senior, and top appellate judges: The Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sales - although the judgment stopped short of stating that a statute was required to empower the Government to trigger Article 50, this is the natural conclusion of the effect of the judgment The Northern Irish judgment - issues relating to the exercise of the Royal Prerogative to trigger Article 50 stayed to the English Court to avoid duplication - there is no constitutional requirement under the Northern Ireland Act 1998, the Good Friday Agreement, the Anglo-Irish Agreement or any other constitutional provision for an Act of Parliament to trigger Article 50 - the triggering of Article 50 would likely be an ‘excepted matter’ for the purposes of devolution legislation, nullifying the proposed requirement for a Legislative Consent Motion in Stormont - section 75 of the Northern Ireland Act, requiring an equality impact assessment, is not relevant - there is no substantive legitimate expectation that there can be no change to the constitutional rights of the people of Northern Ireland without their consent - leave to appeal was granted on all issues except the substantive legitimate expectation issue - the judgment made some observations on the extent of the Crown’s prerogative powers - the triggering of Article 50 is a matter of high policy, fitting into the category of prerogative powers which are not suitable for judicial review - but the Northern Ireland judge did not consider whether the ECA displaced the prerogative powers - the judge did not address the principle that prerogative powers cannot change domestic law resulting from the ECA What next? - we expect a joint ‘leapfrog’ appeal to the Supreme Court in early December on all appealable issues - reference to the Court of Justice of the EU can only be made by the Supreme Court itself, if it feels it needs clarification on a point of EU law (for example, whether Article 50 notification can be withdrawn) in order to decide the appeal – we think that such a reference is unlikely - the appeals are about legal process, not politics. They will not stop Brexit – merely require the giving of notice under Article 50 to be authorised by a vote in Parliament and/or the passing of an Act of Parliament - parliament could, in theory at least, block or delay Brexit - neither MPs nor the House of Lords are bound to give effect to the referendum result o the Referendum Act 2015 did not specify the consequences of a vote to leave and a briefing paper to Parliament indicated the public vote would be advisory o but there may be difficult political issues to deal with if they do not - this is a judicial review application for a declaration that an anticipated exercise of power would be illegal. This is permitted by CPR 54.3(1) (a), referring to Senior Courts Act 1981, section 31(2). It is therefore of significant procedural interest as well as the obvious constitutional law content If you would be interested in receiving these briefings please subscribe here or contact your usual Eversheds contact. For more information on Brexit please visit the Eversheds Brexit hub. The Queen on the application of (1) Gina Miller (2) Dier Tozetti Dos Santos (Claimants) and Secretary of State for Exiting the European Union (Defendant) and (1) Grahame Pigney and others (2) AB, KK, PR and Children (Interested Parties) and George Birnie and Others (Intervener) CO 3809/2016: CO 3281/2016 16/070763/01 In the matter of an application by Raymond McCord for leave to apply for Judicial Review 16/074260/01 In the matter of an application by Steven Agnew and others for leave to apply for Judicial Review WARNING - for the purpose of abbreviation and presentation, only the main aspects of the case have been mentioned - this information is for guidance only and should not be regarded as a substitute for research or taking legal advice .
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