Only parliament can trigger Article 50 because to do so would have a direct effect on domestic UK law, not just international law, David Pannick QC, one of Britain’s most senior public lawyers, told a court today.Pannick was speaking on the first day of a legal challenge to the government’s power to implement Brexit. He is seeking a declaration from the court that only parliament has the power to start the process that would lead to the UK leaving the European Union.
“This is not a normal case,” he said. “This is not a case where action can be taken on an international level that does not impact on the domestic level.”
Prime minister Theresa May has already said that her government plans to start to process for leaving the EU without a parliamentary vote, using so-called “prerogative powers”.
These powers, defined as the “residue” of powers once held by the monarch and not yet held by parliament, are mostly confined to international relations and cannot be used to overturn decisions made by parliament as that would be the same as the monarch overturning law. This, Pannick said, means that prerogative cannot be used in this case
“This is a case about the limits of executive power when parliament itself has conferred fundamental rights,” Pannick said.
If the government notifies the EU that it intends to leave the EU, known as triggering Article 50, it is giving notice that rights conferred by EU treaties “will be destroyed”, Pannick said.
Those rights include freedom of movement across the union, right to vote in European elections and the right to take cases to the EU court, as well as many other rights and protections such as the European Working Time Directive, Pannick said.
All of these rights have been voted into UK law by acts of parliament, Pannick said. That means that only parliament can destroy them, he said.
“The creation of acts by statute removes the right of a minister to remove them. Rights have been created by parliament. They cannot be taken away by a minister,” he said.
The fact that there has been a referendum on EU membership doesn’t change this, he said, because the EU Referendum Act 2015 , unlike other referendum acts, didn’t say what should be done after the vote.
Also “this does not undermine democracy because, when deciding on triggering Article 50 parliament would not be asked ‘should we stay or should we go’,” he said. Instead, MPs would be looking at issues such as timing of the notification, negotiating terms, and the government’s obligations to report back to parliament.
Pannick is representing fund manager Gina Miller, the lead clamant in today’s lawsuit. Other claimants include a Spanish hairdresser and a group of concerned expatriates. Some of them are crowd funded.
The government, represented by Attorney General Jeremy Wright, will respond on Monday. 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.
Applications for Permission:
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
(Thomas LCJ, Etherton MR, Sales LJ) 13 October 20
