High Court hearing a challenge to Article 50

Question

High Court hearing challenge to Article 50 strategy. Should the current government have the right to formally begin Brexit without parliamentary approval?

Answer

Theresa May has said that she will trigger Article 50 of the Lisbon Treaty 2007 and notify the European Union that the UK intends to leave, by the end of March 2017. However, the High Court is now considering whether ministers can activate Article 50 without a new law being passed by MPs first. QC Lord Pannick has stated that the case “raises an issue of fundamental constitutional importance concerning the limits of the power of the Executive”. (BBC, Politics, 13 October 2016). On the other hand, ministers argue that they draw their entitlement to act from ancient powers of Royal Prerogative. However, it must be also considered that the principle of parliamentary sovereignty is fundamental to the constitution and the rule of law in the UK.

Lord Pannick, states that invoking Article 50 threatens the rights of individuals protected by the 1972 European Communities Act, and that it is ultimately down to Parliament to remove or reduce rights that have been granted under law. Article 50 must have the consent of the House of Commons and the House of Lords (BBC, Politics, 13 October 2016). Therefore, it is clear that the case has huge constitutional importance and will clarify whether executive powers can trump an Act of Parliament.

It has to be also noted that Article 50(1) states that any Member State may withdraw from the European Union “in accordance with its own constitutional requirements”. This term has not been defined, which may potentially lead to judges referring the matter to the European Union’s court of justice (ECJ) to seek clarification on what is meant by this. This however, may be undesirable due to fundamental questions about British sovereignty being reviewed by European judges. It remains to be seen what this case will result in and what changes it may bring.

References

BBC.(2016).‘Brexit: High Court hearing challenge to Article 50 strategy’. http://www.bbc.co.uk/news/uk-politics-37639307

The Lisbon Treaty 2007