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Brexit legality in the Royal Court of Justice

Written by Samuel O'Toole on 13 October 2016

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Following the referendum on 23 June, the Government maintains that the decision to leave the EU is enough for David Davis (the Brexit secretary) to give notice on behalf of the cabinet. The Government is holding out that its executive powers, under the royal prerogative, are sufficient to trigger Article 50 of the Treaty on European Union.   The article states that European Union Member States may withdraw “in accordance with its own constitutional requirements”. The widely drafted Article has created a legal dispute as to who has the authority to trigger Brexit.

Today, 13 October 2016, three of the most senior Judges in England and Wales namely, the Lord Chief Justice, Lord Thomas of Cwmgiedd, newly appointed master of the rolls, Sir Terence Etherton, and Lord Justice Sales will hear arguments from both sides of Brexit in the Royal Courts of Justice.

The lawyers working for the claimants that are leading the judicial review as to who can trigger the Article; will argue that the referendum was consultative and as such no formal decision has been made. A skeleton argument for the claimants reads [David Davis] “may only notify such a decision to the European council under Article 50(2) Treaty on European Union once he has been properly authorised to do so by an Act of Parliament”.  Arguments will also be made in reference to the Bill of Rights 1689 that it “expressly prohibits the use of prerogative in circumstances where it would ‘suspend’ or ‘dispense’ statutory law”.

The Royal Prerogative is a right of the sovereign; it theoretically means that British law is not subject to any restrictions.  British law may not be subject to any restrictions, however, we should hopefully find out if the prerogative is subject to such restrictions.

Interestingly as Article 50 states that Member States may withdraw “in accordance with its own constitutional requirements”. As such, and in line with the UK’s unwritten constitution, one possible outcome would be that the judges refer the matter to the European Union’s Court of Justice in Luxembourg to seek clarification. This would allow European Judges to answer question in relation to the British sovereignty (something that neither side wishes) and ultimately make the decision as to Brexit.

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