A very important High Court decision is awaited in the matter of Santos and M -v- Secretary of State for Exiting The European Union. It concerns a judicial review brought following the EU referendum on 23 June 2016 and is scheduled to be given on 3 November 2016.
The outcome of this case is of highly important constitutional legal significance, and highlights the issues that can arise in the absence of a written constitution.
The Claimants bringing the case are not seeking to overturn the outcome of the EU referendum but, instead, they are challenging the fact that Parliament is being prevented from authorising the triggering of ‘Article 50’. It will be recalled that the Government has indicated it intends to trigger ‘Article 50’ by the end of March 2017. That commences the two year process at the conclusion of which EU membership automatically comes to an end, unless every EU Member State agrees to a time extension.
The Government contends that it can pull the Article 50 trigger through what is called the ‘Royal Prerogative’. Conversely, the Claimants say that the Government cannot do this for a number of reasons, including the contention that prerogative power cannot be used to remove fundamental rights and that it would mean in this particular case the Executive effectively “trumping” Parliamentary sovereignty. An irony of the case is there is being played out an argument in court concerning Parliamentary sovereignty, opposed by the Government, following a referendum campaign in which the issue of the return of Parliamentary sovereignty was material to many voters. The essence of the case brought by the Claimants is that they say Parliamentary sovereignty in this matter is supreme.
The presentation of arguments in the case concluded on 18 October 2016 and a decision is imminent. It is almost inevitable that there will be an appeal to the Supreme Court by whoever loses, given the hugely important constitutional point. Indeed, Supreme Court time has already been reserved for the second week of December 2016 to hear the case before the fully constituted Court of 11 members.
If the Claimants’ case is successful, it will almost certainly mean not only an Act of Parliament will be needed for the triggering of Article 50 but also that Parliament may not necessarily have done this by the end of March 2017. Given the current absence of any publicised plan as to the UK’s pathway out of the EU, it may be improbable that the March 2017 timetable will be kept.
It should be noted that any Act of Parliament to trigger Article 50 would be quite different to any Act resulting from what has been called the ‘Great Repeal Bill’ (an interim term) which is to be the piece of legislation that will take away the European Communities Act 1972, i.e. the legislation that brings EU law into UK law. That legislation is a considerable time away. One of the related arguments that is said to support only Parliament being allowed to trigger Article 50 is this: if Parliament declined to pass the Great Repeal Bill, the UK would still have to withdraw from the EU because Article 50 starts the two year process that cannot be stopped unless all EU member states agree. Thus, if the Government were at the outset allowed under its prerogative to trigger Article 50 this would arguably compromise Parliament’s right to pass the legislation to take away the European Communities Act 1972 when it sought fit, in accordance with its own sovereignty; the rug would have been pulled from under it, in essence.
Funding for this has been raised through “crowdfunding” where members of the public can contribute to legal costs and fees.
A full transcript of the hearings can be found here: https://www.judiciary.gov.uk/publications/santos-and-m-v-secretary-of-state-for-exiting-the-european-union-transcripts/