The attorney general today attempted to persuade a judge that the only constitutional and lawful way to respect the Brexit referendum result is to allow the government to trigger Article 50.
James Eadie QC puts the government’s case to the High Court, arguing that it should dismiss a claim that only parliament can trigger Article 50. In a hearing that began last week, fund manager Gina Miller and other claimants including a Spanish hairdresser and a group of concerned expatriates seek a declaration that only parliament has the power to implement Brexit, as to do so would have a direct effect on domestic UK law.
But Eadie, opening the defence on behalf of the secretary of state for exiting the European Union, will argue that the claim should be dismissed.
He said: “This case has profound constitutional implications and profound political implications. It also raises a series of questions about how the British constitution should react in unique circumstances that concern the court and confront the country at this time.”
He denied that parliamentary sovereignty would be pre-empted by the government’s “proper and well-established use of the royal prerogative” to trigger Article 50, and that beginning the process of Brexit would not in and of itself change any common law or statutory right enjoyed by UK citizens.
Arguing instead that it would “give effect to the will of the people”, he said: “It is our case that parliament’s consent is not required.”
In his written arguments, he said: “The government intends to give effect to the outcome of the referendum by bringing about the exit of the UK from the EU. That is a proper constitutional and lawful step to take in light of the referendum result.”
He argues that the people of the UK voted by a clear majority to leave the EU and that, prior to the referendum, the government’s policy was unequivocal that the outcome of the referendum would be respected.
The grounds add: “Parliament passed the EU Referendum Act 2015 on this clear understanding. The British people expected to vote, and did vote, on the same understanding. The current prime minister has confirmed that the government will give effect to the outcome of the referendum by bringing about the exit of the UK from the EU.
“Article 50 of the Treaty on European Union sets out the procedure by which a member state which has decided to withdraw from the EU achieves that result. The government intends to give notification under Article 50 and to conduct the subsequent negotiations, in exercise of prerogative powers to conclude and withdraw from international treaties.
He said: “In the circumstances of the present case, it would be constitutionally proper and lawful to begin to give effect to the referendum result by the use of prerogative powers. The basis on which the referendum was undertaken was that the government would give effect to the result of the referendum. That was the basis on which the people voted. The 2015 Act neither expressly nor implicitly required that further parliamentary authority would be required before an Article 50(2) notification could be given to commence the process of giving effect to the outcome of the referendum.
“The exercise by the Crown of its prerogative power in the circumstances of the present case is consistent with the settled position in international and domestic constitutional law, which has itself neither expressly nor by necessarily implication abrogated that prerogative. Decisions as to the making of and withdrawal from treaties are paradigm examples of the use of the prerogative.”
In any event, he argued, the decision that the UK should withdraw from the EU is “not justiciable in the courts”: “The courts should not entertain a claim which in substance challenges that decision directly or, at the least, indirectly by seeking to prevent the decision from being implemented.”
The case is being heard by the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales. The judges are expected to reserve their ruling. If one of the sides decides to appeal the ruling, the case will be head by the Supreme Court, leap-frogging the Court of Appeal.
The Queen on the application of Santos v Secretary Of State For Exiting The European Union; The Queen on the application of Miller v Secretary Of State For Exiting The European Union High Court (Thomas LCJ, Etherton MR, Sales LJ) 17 October 2016
