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Tuesday, February 11, 2025
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Ask Full Fact: Brexit in court

Q: What do you mean, Brexit in court?

A: A number of different people are challenging the way in which the Prime Minister plans to implement the referendum vote to leave the European Union. Their claims are about whether Parliament needs to pass legislation before the UK can leave.

The High Court decided today that these claims should be heard together in October.

Q: Aren’t they about trying to stop us leaving the EU?

A: Not directly. The lawyers say that’s not the motive. They’re arguing that the government can’t make the decision to take us out of the EU on its own. Instead, they want the courts to declare that MPs and members of the House of Lords have to authorise it first.

Q: Hang on, hasn’t the decision to leave the EU already been taken?

A: People have voted for it, but the referendum wasn’t legally binding. Formally, nothing has changed. We’re still members of the EU and the government has not yet triggered the decision to leave. We only start the process of leaving when we officially decide to go and inform the EU of that decision.

Q: By invoking Article 50 of the Lisbon Treaty, right?

A: Actually it’s Article 50 of the Treaty on European Union. But, yes, according to Article 50, a country that wants to leave the EU has to notify the European Council, which is made up of government leaders. That kicks off a period of negotiation on unwinding that country’s membership, which is a complex business.

Q: So it’s up to the Prime Minister to do that?

A: That’s what the government’s lawyers think, and plenty of other legal experts as well. But equally respected lawyers disagree, saying that Parliament  would have to authorise the use of Article 50 by passing legislation. Now the courts will have to decide.

Q: How can it be such a difficult question?

A: Article 50 says that a country’s decision to leave the EU has to be made “in accordance with its own constitutional requirements”. The UK doesn’t have a codified constitution—the president of the Supreme Court thinks it doesn’t have a constitution at all—which leaves plenty of scope for argument about what our “constitutional requirements” are.

Q: Can you give me the opposing arguments in one sentence?

A: One side says “Under the UK’s constitution, it is the Crown (the Queen acting under the Royal Prerogative in practice on the advice of government ministers) which has the power to enter into and withdraw from international treaties”.

The other side says that there is an existing law, or statute, making EU rules part of our legal system, so “it is not open to Government to turn a statute into what is in substance a dead letter by exercise of the prerogative powers”.

Q: So which side did the judges take?

A: Neither, yet. Today’s hearing was about working out the timetable for the case, and how to deal with similar cases on the same issue. They ordered a hearing lasting two or three days in the middle of October. The case will be heard by the Lord Chief Justice, Lord Thomas of Cwmgiedd, sitting with two other judges.

Whichever side loses is expected to appeal. But it’s likely that the appeal will ‘leapfrog’ the Court of Appeal and go straight to the UK Supreme Court for a hearing in November. That court would be expected to deliver its judgment before the end of the year. The government made it clear in court that it was not planning to trigger Article 50 before the end of 2016.

Q: Let’s have the rundown of the different cases, then.

A: The case that reached court today was brought by a hairdresser named Deir Dos Santos and was organised by a team of lawyers led by Dominic Chambers QC.

Another one has been started through a crowdfunding campaign, and is led by Jolyon Maugham QC.

But the lead claimant will be a fund manager called Gina Miller. She’s represented by Lord Pannick QC and the solicitors Mishcon de Reya.

There are also some expatriates who are planning slightly different challenges.

Q: So who are they taking the case against?

A: The government, essentially, but cases of this kind are brought against a specific minister. The government says that the appropriate defendant is the newly-created Secretary of State for Exiting the European Union—which means thatDavid Davis has this on his plate.

Q: If the claimants win, will MPs and peers have to vote in favour of Brexit for it to happen?

A: Yes.

Q: And if the claimants lose?

A: Theresa May will be able to trigger Article 50 at a time of the government’s choosing and on its own authority.

By Conor James McKinney and Joshua Rozenberg

This is an extract from the excellent Full Fact published every Friday right here.

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https://www.facebook.com/groups/280126085520259/

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