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Government awaits first legal opposition to Brexit in high court Theresa May does not intend to trigger article 50 this year, court told
(about 2 hours later)
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. Theresa May does not intend to trigger article 50 of the Lisbon treaty initiating the UK’s departure from the European Union before the end of 2016, the high court has been told.
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. At the opening of the first legal challenge to the process of Brexit, government lawyers suggested that the highly sensitive case is likely to be appealed to the supreme court.
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. At least seven private actions arguing that only parliament, and not the prime minister, has the authority to invoke article 50 have been identified to the court.
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”. Confirming that the UK is not aiming to push the exit button until next year at the earliest, Jason Coppel QC, for the government, conceded that there was “some urgency” to the issue.
The defendant resisting the action will be David Davis, the new Brexit secretary.
No question of whether the court has jurisdiction was raised at the opening of the hearing. Sir Brian Leveson, one of the judges in charge of the directions hearing, said the full trial would be in October.
So many lawyers are participating in the legal challenge that the proceedings were moved to the lord chief justice’s wood-panelled gothic-style courtroom, the largest in the Royal Courts of Justice.
The court ordered that the lead case for the legal challenge should be the one brought by an investment manager, Gina Miller, who lives in London.
Her claim is being coordinated by the law firm Mishcon de Reya. She attended the hearing and afterwards said: “We believe in a fair society. This is very much along the lines of my belief [as a remain voter].”
Lord Pannick QC, who is instructed by Mishcon de Reya, said the law firm had been subjected to racist and antisemitic abuse.
“The publicity that has accompanied notification of the legal issue has provoked a large quantity of abuse directed at my solicitors, Mishcon de Reya,” Pannick said.
“It’s racist abuse, it’s antisemitic abuse and it’s objectionable. It’s contempt of court for people to make threats [in relation to live proceedings]. We have asked that the names of those people who are making the claims should be redacted.
“People have been deterred from [making legal claims] by the abuse. It’s a very serious criminal matter for people to make threats.”
Lord Leveson agreed that interfering with the course of justice by making threats was “an extremely serious matter”.
Brexit supporters staged a demonstration outside Mishcon de Reya’s London office on Thursday with a banner and placards declaring: “Invoke article 50 now” and “Uphold the Brexit vote”.
One challenge 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 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.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. “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 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.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”. 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 Coppel QC. 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 Coppel.
Related: Deadline approaches for government response to Brexit legal challengeRelated: Deadline approaches for government response to Brexit legal challenge
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. Lawyers representing 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.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.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.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.