The high profile case of Santos and Miller v Secretary of State for Exiting the European Union known as the ‘Article 50 challenges’ concluded with many deeming it to be the most important constitutional case for a generation. The judicial review proceedings brought by the two claimants Dier Dos Santos (represented by Edwin Coe LLP) and another, along with various intervening groups, revolves around the assertion that a Parliamentary vote is needed before Article 50 can be triggered.

The proceedings have, perhaps unsurprisingly considering the subject matter, generated a huge amount of discussion and political controversy. It is important to remember however that this is a case that is at its core solely concerned with the legal arguments surrounding Article 50, and not with whether or not we should withdraw from the EU.

The Claimant’s case

The Claimants dispute the notion that has been put forward by the Government, that Article 50 can be triggered using the royal prerogative (essentially allowing the Government to invoke Article 50 without the consent and authorisation of Parliament), and in so doing raised a number of core arguments:

  • That the use of the royal prerogative by the executive would have the effect of allowing the Government to unilaterally remove fundamental rights that British citizens have under the European Communities Act 1972 and subsequent legislation, such as:
    • the right for UK citizens to stand and vote in European elections;
    • the right to put cases forward to the European Court of Justice;
    • the right to seek the European Commission’s intervention to uphold competition law
    • the free movement of goods and services;
    • the right of establishment throughout the EU.
  • Many of these rights would be permanently stripped from British citizens and it is the Claimants’ case that the prerogative cannot be used to take away rights that have been enshrined in statute passed by Parliament. Parliament gave the rights and only Parliament can remove them.
  • It is irrelevant that some of the rights that may be lost could eventually be re-enacted, for instance if the Government manages to secure a free trade deal, as these rights should never have been taken away in the first place.
  • That the use of the royal prerogative would be unconscionable in that it would undermine Parliamentary Sovereignty, a principle that dates back to the Bill of Rights and a fundamental pillar of the UK’s constitution.
  • There was also the argument that some rights were outside of Parliament’s gift to replace, such as those of one intervener, a Canadian woman whose right to reside in France derived from her British husband.
  • Although the Government propose that Parliament will vote on the terms of the exit treaty after negotiation, the Claimants say that that is too late because the Article 50 notice will start an inexorable process to withdrawal on the second anniversary of the notice whatever should be the views of Parliament. Parliament will simply be faced with a fait accompli and will not have free vote on ‘in’ or ‘out’.

The Defendant’s case

The Government contend that the power to activate Article 50 is a classic example of the proper and well established use of royal prerogative with regard to treaty making and breaking. It is the Government’s case that:

  • the use of the executive power is suitable as it is to be used to give effect to the will of the British people in respect of the wholly democratic referendum result.
    • The Attorney General, Mr Wright states that the Claimants’ case is “not a narrow legal challenge directed to the technical procedural matter of notification. In reality, it seeks to invalidate the decision already take to withdraw from the EU.
  • Parliament has had several opportunities already to restrict the Government’s prerogative powers with regard to the EU exit. The most recent example of this being the recent European Referendum Act 2015.
  • In any event it is “very likely” that any treaty from negotiations with EU members will go to both houses of Parliament for ratification.

What will happen next?

This is clearly a complex case and one of fundamental constitutional importance. Lord Justice Thomas confirmed that the judges would “take time to consider the matter”. A decision is likely to be made in November, however, it is widely accepted that the losing side will make an appeal. Indeed a “leapfrog” date has already been set up for an appeal at the Supreme Court in December to allow for this matter to be concluded before the New Year.

For reference please see The Skeleton Arguments and The Transcripts.