Article 50: The definite article?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
8 November 2016

The High Court determined that MPs must have a say on triggering Article 50. The senior Judges ruled last Thursday that the British Government does not have the authority to proceed with the UK’s exit from the European Union without the approval of Parliament.

This was a legal challenge for the Prime Minister Theresa May who was of the opinion that she had the power to trigger Article 50, the clause that will begin the Brexit process. The Government said that the decision to leave the EU by the public in referendum on 23rd June 2016 and that its executive powers, under the Royal Prerogative, was sufficient to give notice to the EU on behalf of the Cabinet. This was challenged in the High Court, stating that the referendum was just a consultation and only Parliament had the power to decide. One of the two main claimants who led the challenge was Gina Miller a business woman and philanthropist who said that the challenge was not an attempt to overturn the referendum decision but was taken in order to answer a fundamental legal question about the powers that can be used by the Prime Minister and whether she can sidestep Parliament. The Ruling does not stop Brexit but it does make the position more confused.

The Government said it will appeal against the decision and it has permission to go straight to the Supreme Court, which has set aside time for what might be a four day hearing beginning on 7th December 2016.

All 11 of the Justices will be sitting. The biggest Court ever assembled to decide on this matter which goes to the heart of the UK’s unwritten constitution. It is obvious that the Supreme Court will be sensitive to public opinion about the role of the Court and whether the Court making a decision is political rather than Judicial.

How an MP would vote on Article 50 is not clear. We know that most MPs supported remain, but most represent constituencies that voted to leave, so that will go right to the heart of how the British constitution works, whether the MPs should vote according to the wishes of their constituents or accordingly to their own best judgements, leaving the electorate to decide whether to keep them in their jobs in the next election and facing the consequences of the public being displeased. Leave was the majority view in 70% of the labour seats, so it would probably be an electoral suicide for the parties MPs to rebel and such a move would open the gates, according to some opinions, for UKIP to win these votes.

The First Minister of Scotland Nicola Sturgeon said that the Scottish Government will actively consider whether it will formally join in the next legal battle over the right of MPs to vote on Article 50, after the British Government’s defeat at the High Court. She said that the Court ruling was hugely significant and it underlines the total chaos and confusion at the heart of the UK Government. Fifty six SMPs in Westminster would vote against the triggering of Article 50, given that Scotland voted to remain in the EU.

Northern Ireland’s Deputy Leader Martin McGuinness said the High Court process showed that the approach by most of the Conservative Party to Brexit has been shambolic: “I have no faith in the British Parliament supporting a democratically expressed wishes of the people of the North to remain in Europe. Any decision taken about the future of the people of Ireland needs to be taken on this island,” he said. The vote of the Northern Ireland MPs in the House of Commons could prove critical.

Here at Danielle Cohen Solicitors there is no doubt that the Article 50 decision will affect EA nationals and their family members and in particular the children whose carers are in the UK under the Zambrano judgement. The issues affect all areas of law because EU law is implemented in 100s of ways, ranging across all fields of law and the issue is one of high constitutional principle. We share the view that although the ministers acting on behalf of the Crown have the power to enter into treaties with other nationals or international organisations, they cannot do so without prior Parliamentary authority, where the effect is to change the existing domestic law and especially where there are fundamental human rights involved.