Brexit Update: Challenge to the UK Government’s Authority

Arguments from the second and third days of the Court hearing

On 13 October the High Court in London heard opening arguments from claimants challenging the Government's decision to trigger article 50 and commence departure from the EU without first consulting Parliament. In summary, the Government takes the view it can do this under the royal prerogative, a residuary right which ministers occasionally use to enter into treaties before ratification by Parliament. The claimants argue the prerogative cannot be used to take away the rights of citizens. They rely in part on the 1689 Bill of Rights which established the principle that the King cannot suspend or dispense with laws.
 
The court room was packed with at least 23 barristers appearing for one or other party and still further lawyers holding a watching brief from the devolved nations of Scotland and Wales. Public interest was high with proceedings being relayed by live video link to two other courtrooms to accommodate members of the public who could not squeeze into the public gallery.
 
The case is proceeding on the basis that (i) once triggered, an article 50 notification cannot be withdrawn, and (ii) the notification cannot be made conditional. If article 50 is triggered, the UK will inevitably leave the EU.
 
The Government's reply and closing arguments from both sides were heard on 17 and 18 October.
 
During proceedings, the Attorney General for the Government conceded that Parliament was 'most likely' to be involved in ratifying any eventual deal agreed with the EU even if it was not involved before the trigger was pulled. He argued that express words or a necessary limitation is needed to curtail the scope of the prerogative and that the existing European acts do not do this. The claimants, on the other hand, explained the types of rights that would be lost and why the authority of Parliament is needed to remove them.
 
We await judgment. The dates of 7 and 8 December have already been penciled in for an appeal to the Supreme Court.

To read about the first day of the hearing and updates about the impact on IP laws, please click here.