A legal challenge to Brexit kicked off today, with one of the judges managing the case saying that it was of such “great constitutional importance” that it could be sent directly from the High Court to the Supreme Court for fast resolution.
Judges Sir Brian Leveson, best known for chairing the public inquiry into phone hacking, and former solicitor general Ross Cranston were tasked today with organising the various groups of challengers to make sure the case proceeds to a speedy trial.
They ruled that the case should be heard around 15 October by the lord chief justice, England’s most senior judge. The hearing will last two to three days. It is of such national importance that, should any of the sides decide to appeal the judgement, it will probably be sent directly to the Supreme Court, bypassing the Court of Appeal, for a final ruling, Leveson said.
Government lawyer Jason Coppel confirmed to the court that the government has no plans to trigger Brexit before the end of 2016, but if that changed, the court would be informed so the timetable could be sped up.
Lawyers acting for four different groups challenging Brexit were present in court today. Broadly, they are made up of “concerned citizens” and “concerned British expats”, Leveson said.
No reference was made to the specific identities and positions of the claimants. However, the judges ruled that a document lodged at the court that identified some people who are no longer connected should have their names removed because they had been subjected to “racist and anti-semitic abuse”.
Some of the claimants have not fully prepared their cases, and the government’s lawyers have not yet given an indication of their position. However, it became clear during the hearing that court action seeks to challenge the government’s authority to trigger Brexit through Article 50 of the Lisbon Treaty, and is not concerned with the result of the referendum itself.
Dominic Chambers QC, representing a claimant called Deir Santos, said that he was “ready to go” and in a position to outline the general thrust that all the claimants are planning.
“There are two arguments: the sovereignty argument and the prerogative argument,” he said, without giving further details. He said he will be making both arguments, whereas the other claimants will be only arguing the prerogative argument.
He gave further details about the arguments in court documents.
Briefly, the sovereignty argument states that only parliament, not the government, can trigger article 50. This is because only parliament makes laws. The treaty obligations of the European Union were incorporated into UK law by votes in parliament, so only parliament can take them away.
The prerogative argument also says that only parliament can trigger article 50, but for different reasons. When governments sign treaties, they are exercising the so-called “royal prerogative” which means they are using powers that once were used by the reigning king or queen.
However, the lawyers in this case say it is against constitutional law for the prerogative to be used to deprive citizens of their rights. They say that it can be used for making treaties, but not for changing laws. That means, they say, that there must be a vote in parliament before article 50 is triggered.
Now, the lawyers will have to work though August and September to meet a series of deadlines set by the judges to ensure the case gets heard on time.
“You will have to put your buckets and spades down for a bit,” Leveson told them.
