A group of claimants has landed its first blow in an article 50 case against the government, after the High Court ruled that it has no constitutional power to trigger Brexit.
The judgment for the politically charged case was handed down this morning (3 November) by the lord chief justice, Lord Thomas of Cwmgiedd who read out a summary the court’s decision to a packed courtroom in London’s Royal Courts of Justice.
Sir Brian Leveson, president of the Queen’s Bench Division, and Mr Justice Cranston are the presiding judges on the judicial review, which heard whether Prime Minister Theresa May has the power to serve notice of withdrawal from the EU under Article 50 or whether she needs a vote in parliament approving withdrawal.
However the decision is expected to be appealed and Blackstone Chambers’ James Eadie, representing the government, has asked for leave to appeal, which was granted by the court.
According the decision: ‘The secretary’s case regarding his ability to give notice under Article 50 was based squarely on the Crown’s prerogative power. His counsel made it clear that he does not contend that the 2015 Referendum Act supplied a statutory power for the Crown to give notice under Article 50. He is right not to do so. Any argument to that effect would have been untenable as a matter of statutory interpretation of the 2015 Referendum Act.’
‘The secretary of state does not have power under the Crown’s prerogative to give notice pursuant to Article of the Treaty on European Union for the United Kingdom to withdraw from the European Union.’
Mishcon de Reya partner Kasra Nouroozi (pictured) led the team advising the headline claimant on the challenge and has instructed Blackstone Chambers’ duo Lord David Pannick QC and Tom Hickman, as well as Matrix Chambers’ Rhodri Thompson QC and Monckton Chambers’ Anneli Howard.
The case has been brought by investment banker Gina Miller, and others.
A second legal challenge was brought by high-profile barrister Jolyon Maugham QC of Devereux Chambers, who launched a publicly-funded campaign with human rights firm Bindmans to consider a public law case on the result of the referendum.
Maugham QC set up the campaign on Crowdjustice.co.uk, and raised its target of £10,000 in 12 hours from more than 400 backers. The money raised will be used to take advice from public and human rights partner John Halford of Bindmans, who will instruct a team of constitutional law barristers.
A third claimant is British hairdresser Deir Dos Santos, who is represented by Edwin Coe.
Defending the government, namely the Secretary of State for Exiting the EU, David Davis, is 11KBW’s Jason Coppel QC.
During early proceedings in July, serious concerns were raised in an exchange between Pannick and the presiding judges about the ‘racist, anti-Semitic and objectionable’ abuse directed at Mishcon de Reya.
In a statement Law Society president Robert Bourns said: ‘The ability to have such questions determined by an independent judiciary is central to the rule of law – something which the Law Society of England and Wales strives to promote both within the UK and around the world – and we are fortunate that the independence of our judges is recognised globally.
‘The question as to whether the decision to trigger Article 50 is one for the government, using the royal prerogative, or for Parliament through statute is central to this court case. Most commentators assumed that this case – whatever the outcome in the High Court – would be appealed to the Supreme Court so today’s ruling is a step along the road to a final decision.’
sarah.downey@legalease.co.uk
Read the judgment here.
Read more reaction to the decision in: ‘The outcome of the Supreme Court is not foreseeable’: City lawyers react to Brexit challenge
