First court hearing on Article 50 Challenge

As most readers will know by now, the referendum result (in which a majority of the British public voted to leave the EU) does not operate to terminate the UK's membership of the EU. The legal mechanism for this to happen is set out in Article 50 of the Treaty on European Union, which requires a member state to give notice to the European Council of its intention to leave the EU (Notice).

On 19 July, legal representatives of a group of claimants and potential claimants who contend that the government can only trigger Article 50 once it has obtained parliamentary approval to do so attended a hearing at the Royal Courts of Justice. What impact could this have on timing and on any future decision concerning Article 50?

Court Procedure

The hearing was mainly procedural and a "lead claim" was identified. Other parties represented at the hearing have been granted leave to intervene or to be joined to the proceedings as interested parties.

The substantive hearing is likely to commence in the middle of October and is anticipated to last for two or three days. The Court set out a procedural timetable designed to ensure that the case is heard on time and indicated that the parties were unlikely to be able to obtain significant extensions to the deadlines imposed.

Timing

During the hearing, a government lawyer indicated that the government's position is that Article 50 will not be triggered before the end of 2016. He did, however, note that this position may change.

It seems clear that the court wants to avoid undue delays. It has indicated that new claims on the point will be stayed pending the outcome of the "lead claim" although those who wish to apply to for leave to intervene, or to appear as an interested party, may do so.

The Court also identified the possibility of a "leapfrog appeal" directly to the Supreme Court and indicated that steps would be taken to ensure that, if a Supreme Court hearing became necessary, it could take place before the government triggered Article 50.

Threats

Counsel explained that the law firm representing a group of potential claimants had been subject to abuse and that this had deterred some of those claimants from bringing claims. The Court expressed deep concern about such behaviour and ordered that the names of previous potential claimants be redacted from the court file.

The Court also emphasised that the parties should treat correspondence passing between them as confidential and should take steps to ensure that it did not enter the public domain.

Comments

It is early days in the procedure and not much can be said on the potential outcome until the hearing on substantive issues takes place in October. In terms of timing, it appears that the groundwork has been laid for a final, Supreme Court decision on the matter before the end of 2016. If the claim succeeds, then the government will have to put the question of whether it ought to trigger Article 50 to Parliament. It is well known that a majority of MPs favoured staying in the EU although they may feel duty bound to give effect to the results of the Referendum.