The Legal Challenge On Article 50 – Could It Halt Brexit?

By Teni Shahiean of OTS Solicitors

The first legal challenge aimed at preventing the Prime Minister from triggering Article 50 was heard in the high court today. The case has been brought by Deir Dos Santos, a British citizen. He has been subjected to internet abuse since his involvement was revealed as have the law firms involved in the challenge.

The hearing is seen as so sensitive and important that it will be heard by the President of the Queen’s Bench division, Sir Brian Leveson and Mr Justice Cranston, who was formerly an MP and Solicitor General during Tony Blair’s Labour Government.

It was announced by Jason Coppel QC, for the Government, that Article 50 will not be invoked until next year at the earliest.

This article will examine the grounds for the case and whether or not it provides any much needed certainty for EU nationals who are working, studying and living in the UK who may be anxious about their residency status.

The grounds for the case

Mr Santos is arguing that only Parliament – not the Prime Minister – can authorise the invoking of Article 50 which will launch the UK’s formal withdrawal process from the EU. At least seven other private actions of a similar nature have also been brought.

Article 50 of the Lisbon Treaty states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

   A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

The legal team argued this morning that triggering Article 50 would automatically, although not immediately, override the European Communities Act 1972, and that only Parliament can change its own legislation. However, the Crown is expected to argue that Article 50 can be triggered by the Prime Minister alone under Royal Prerogative.

It is important that this legal issue is ruled on because Under Article 50(1), a State must withdraw from the EU according to ‘its own constitutional requirements’. And once it is done, there is no going back.

What is ‘Royal Prerogative’?

Royal Prerogative is a series of historic powers officially held by the Queen but are in reality passed to Ministers. They enable decisions to be taken without the backing of, or consultation with Parliament. They cover both domestic and foreign affairs matters and include, among other things, the power to:

• issue and cancel passports
• declare war
• “enter upon, take and destroy private property” in the event of a grave national emergency
• make treaties
• recognise foreign States
• appoint and dismiss Ministers

No complete list of Royal Prerogatives exists. However, they do include the Royal ownership of all swans, but I digress.

Controversy over the cases

A majority of MPs are not in favour of leaving the EU. Therefore, if it is declared that the Prime Minister cannot trigger Article 50 without the consent of Parliament, it is likely that the move will never be made.

This has caused immense frustration to Leave voters, who see the legal challenges as an underhanded way to frustrate the Brexit process. Many of the law firms and their staff who are involved in the cases have experienced abuse, including what can be classed as racist anti-Semitic abuse.

Lord Leveson stated that interfering with the course if justice by making threats was, “an extremely serious matter”. Those partaking in the abuse could be charged with, among other offences, contempt of court and the names of the instigators are being collated.

Still no certainty

Nothing in today’s initial court hearing provides any more certainty to EU citizens living in the UK or businesses trying to navigate through the new uncertain economic waters. Today the IMF slashed the growth forecast for the UK economy by 0.9%. The central forecast sees UK gross domestic product (GDP) growing by 1.3% next year, down from a previous prediction of 2.2%, while this year's GDP figure is pencilled in at 1.7%, down 0.2% compared to the outlook in April.

The World Economic Outlook Update said, "The Brexit vote implies a substantial increase in economic, political, and institutional uncertainty, which is projected to have negative macroeconomic consequences, especially in advanced European economies."

IMF chief economist Maurice Obstfeld said: "Brexit has thrown a spanner in the works."

Interest rates are also expected to be cut next month.

And Article 50 has not even been triggered yet.

OTS Solicitors is a fully regulated, highly regarded law firm, based in the centre of London. Our solicitors are considered to be some of the best Immigration experts in the UK. We are regularly called on by the media to make comments on developments in Immigration law. To make an appointment with one of our Immigration solicitors in relation to obtaining a UK permanent residence Card or British Citizenship, please phone us on 0203 959 9123.