Tuesday

31st Jan 2023

UK releases legal arguments on Article 50

  • May and her government argues that there is no further need for parliamentary authorisation for Brexit (Photo: 10 Downing Street)

The British government was forced by a judge to release its legal arguments for refusing to let the parliament decide when and how the UK should trigger the article 50 procedure to withdraw from the EU.

The legal arguments released on Wednesday (29 September) argue that it is “constitutionally impermissible” for parliament to be given the authority to launch the exit procedure.

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In a court challenge by a group of UK citizens, the British government argued it is the prime minister's prerogative to trigger the exit process, as the parliamentary act establishing the 23 June referendum did not foresee any further action for the parliament after the vote.

"It was clearly understood that the government would give effect to the result of the referendum for which the 2015 Act provided, and that was the basis on which the electorate vote in the referendum," the legal defence says.

"The 2015 Act did not prescribe steps which the government was required tot make in the event of a leave vote," it added.

"It [the government] cannot be prevented from doing so [launching article 50] by the absence of primary legislation authorising that step," the government argues.

It also adds that “treaty-making and withdrawal from treaties is not generally subject to Parliamentary control”.

“The appropriate point at which the UK should begin the procedure required by Article 50 to give effect to [the notification] is a matter of high, if not the highest policy,” the government’s lawyers argue in the document.

A two-year negotiating period will start once the UK triggers the exit procedure, which prime minister Theresa May is expected to launch early next year.

The EU has so far refused any preliminary negotiations until article 50 is officially triggered.

Challenge

The release of the documents came after the crowd-funded People’s Challenge initiative questioned Theresa May’s authority to trigger Brexit in court without parliamentary authorisation, and last week called for the government's legal defence to be made public.

The judge, Justice Cranston, who ordered the release on Tuesday, said: “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under the rules.”

In its legal defence however, the government says the parliament will have "the role in ensuring that the Government achieves the best outcome for the UK through negotiations".

But the government's legal defence also makes it clear that the local legislations in other parts of the UK will not be able to override the triggering of the exit procedure.

They dismiss the idea that Scotland, Northern Ireland and Wales will have a say in the divorce procedure.

The government's layers argue that “devolved legislatures” have no competencies over foreign relations issues, including relations with the EU and its institutions.

British prime minister Theresa May earlier assured Scotland and Northern Ireland, where the Remain camp won the Brexit vote, that she would not trigger Article 50 until there is a UK “approach and objectives”.

'Constitutional vandalism'

The People’s Challenge to the Government on Article 50, a crowd-funded initiative that argues for that it is up to the parliament to trigger the exit procedure, was set up by Grahame Pigney.

On the campaign’s website he argues that his goal is not to ignore the Leave voters who opted for Brexit, but to “ensure that parliamentary Sovereignty is maintained and is respected by the Government”, and that the "rights of 65 million UK citizens are protected”.

The campaign calls the government’s actions “constitutional vandalism”.

"By using the Royal Prerogative to trigger Article 50 of the Treaty of Lisbon this Government will be sweeping away rights at a stroke of a pen without the proper scrutiny of and a final decision being made by our Sovereign Parliament,” they argue.

A hearing for a test case will start on 13 October.

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