Article 50: Legal Challenge to Continue in October

The legal challenge to the process required to trigger Article 50 will continue in October. 

The challenge seeks to provide constitutional clarity on the process required to exit the EU.

Following a preliminary hearing on 19 July 2016, a two-day judicial review will be held in the High Court before the Lord Chief Justice on Thursday 13 and Monday 17 October 2016 to clarify the constitutional process necessary to trigger Article 50 and enable the UK to leave the EU.

Gina Miller is the lead claimant in a judicial review claim against the Secretary of State for Exiting the European Union.

Miller is the co-founder of wealth management company SCM Private.

The claim seeks clarification from the court as to the constitutional process that must be followed by the Government in triggering Article 50 of the Lisbon Treaty of the European Union to withdraw the UK from the EU.

"This case is not an attempt to subvert the outcome of the referendum or to keep Britain in the EU. It is about ensuring for the future of this country that the legally correct process for leaving under the UK constitution is followed. There is only one opportunity for this to be carried out and it should be undertaken in accordance with our laws,” says Miller.

Ms Miller's case argues that the Government cannot trigger Article 50 without an Act of Parliament.

Her legal team will argue that this is required by the rule of law and the sovereignty of Parliament, the principles on which the UK's constitution is based.

“If we do not have clarity over the correct legal way to trigger Article 50, it could result in significant legal disputes and uncertainty over the validity of the notification. My case argues that the executive, i.e. Government, should be held to account by ensuring full Parliamentary scrutiny - and a vote by both houses of Parliament on the required Act – before Article 50 is triggered,” says Miller.

Article 50 of the Treaty on the European Union provides for a Member State to give notice of its exit of the European Union "in accordance" with the Member State's "own constitutional requirements".

This claim is to clarify what the UK's constitution requires before notification can be given. The Government's position has been that the Prime Minister can trigger Article 50 through the use of the Royal Prerogative powers.

Ms Miller will argue that the UK's constitution does not allow the use of the Royal Prerogative powers in this case, because the act of notification under Article 50 frustrates the rights of individuals and others enacted by Parliament in the European Communities Act 1972.

The Royal Prerogative powers cannot be used by the Government to remove or reduce rights granted by an Act of Parliament – the sovereignty of Parliament requires that only Parliament can change its own laws.

The Court indicated in July that, given the constitutional importance of the claim, any appeal will go straight to the Supreme Court and will be decided before the end of this year. This will ensure legal certainty prior to the Government's sending of the notice under its timetable.