The first legal challenge aimed at preventing Theresa May from initiating Britain’s withdrawal from the European Union will begin as lawyers seek to argue that only parliament – not the prime minister – can authorise the signing of article 50 which launches the UK’s formal withdrawal process.
The case, due to be heard in the high court on Tuesday, has been brought by Deir Dos Santos, a British citizen who works as a hairdresser. He has been subjected to internet abuse since his involvement was revealed.
The politically sensitive hearing will be before two senior judges in the divisional court – the president of the Queen’s Bench division, Sir Brian Leveson, and Mr Justice Cranston, who was formerly an MP and solicitor general during Tony Blair’s government. It is likely to hear some opening arguments but also deal with preliminary matters such as whether a similar challenge, brought by the law firm Mishcon de Reya, will be joined together in one combined case.
Brexit supporters staged a demonstration outside the firm’s London office on Thursday with a banner and placards declaring “Invoke article 50 now” and “Uphold the Brexit vote”.
The Dos Santos claim argues: “The result of the referendum is not legally binding in the sense that it is advisory only and there is no obligation [on the government] to give effect to the referendum decision.
“However the [previous] prime minister has stated on numerous occasions that it is his intention to give effect to the referendum decision and organise the United Kingdom’s withdrawal from the European Union.
“The extract from [Cameron’s] resignation speech ... makes it clear that [the government] is of the view that the prime minister of the day has the power under article 50 (2) of the Lisbon treaty to trigger article 50 without reference to parliament.”
The government says its powers are based on the royal prerogative.
That approach, Santos’s lawyers maintain , is “ultra vires” – beyond the legitimate powers of the government – because under the UK’s constitutional requirements, notification to the EU council of withdrawal “can only be given with the prior authorisation of the UK parliament”.
Dominic Chambers QC, an expert in international and commercial law from Maitland Chambers in London, and Jessica Simor QC, of Matrix Chambers, are acting for Dos Santos. The London law firm Edwin Coe is coordinating the Dos Santos case. The government will be represented by James Eadie QC and Jason Copple QC.
David Greene, a partner at Edwin Coe, told the Guardian that since there was no immediate threat of the government triggering article 50, a full hearing of the issues may be delayed until the autumn. “We have not received a response to our judicial review challenge,” he said. Lawyers representing expatriate Britons living in France are expected to join the case.
The majority of MPs at Westminster are in favour of Britain remaining inside the EU. Moves to hand parliament ultimate authority over article 50 have been criticised as a devious and underhand means of frustrating Brexit.
Santos’s lawyers insist the legal challenge is concerned with the constitutional principle of parliamentary sovereignty rather than being engineered for a particular political outcome. Santos, it is said, is not seeking to challenge the result of the referendum, nor is he trying to halt Brexit.
Whether the majority of MPs who support remaining in the EU may now feel morally bound to vote in favour of Brexit if the issue comes to parliament is another question.
This article was written by Owen Bowcott Legal affairs correspondent, for theguardian.com on Tuesday 19th July 2016 06.00 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010