The Mishcon de Reya legal challenge on Article 50 – some thoughts

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3rd July 2016

News has just broken of an Article 50 legal challenge being proposed by the well-known London law firm Mishcon de Reya.

The press release is here.

Here are some initial thoughts.

First, it is not disclosed who the potential claimants are.

Given that the claim goes to a fairly fundamental topic of public policy, it is rather odd that is not disclosed who is proposing to bring the claim.  The press release mentions there has already been correspondence with the government lawyers – so presumably the potential claimants are known to the government.

Second, it is not clear what has actually been done.

“Legal steps have been taken” could mean anything from mere  pre-action correspondence, to a formal Letter Before Action, to the issue of a formal claim. “Legal steps” has no particular meaning at law – it is a press-releasy sort of phrase.

Third, it is not clear what remedy is being sought.

A good guess that it is for a “Declaration” on what Article 50(1) requires as a matter of English (and Welsh) law. A “Declaration” is a discretionary remedy of the courts (you are not entitled to one just because you ask for one) when the correct legal position on something which needs to be established.

(Presumably there will also have to be similar actions in Scotland and Northern Ireland too – it cannot just be assume that all UK jurisdictions will follow what a London court says on this.)

I cannot think what other remedy the claimants could be seeking – for example, a court would not lightly injunct the government from making a notification, and there is no decision for the courts to quash.

Fourth, two of the barristers mentioned as having been instructed have recently published articles on why an Act of Parliament is required for the purposes of Article 50(1).

David Pannick’s article was in The Times,  and Tom Hickman co-authored this at the UK Constitutional Law Association site.

Fifth, it will be interesting what the government’s response will be.

If the government says in response that an Act of Parliament is what will be required then the litigation will go no further.

Sixth, if the action proceeds, then there is the prospect (if permission is granted to bring the claim as there is a permission stage before a substantive stage in judicial review cases) of a public hearing – with the incomparable Pannick as one of the advocates – and then a reasoned decision on what is required by Article 50(1).  It may even go quickly to the Supreme Court.

This would be a fascinating case to say the least for anyone interested in law and policy.

Last, if the government concedes there has to be an Act (or if – dramatically – the courts declare that an Act is required) then Brexit becomes even less likely.

**

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28 thoughts on “The Mishcon de Reya legal challenge on Article 50 – some thoughts”

  1. Does that not suggest that they aren’t as sure of their position, that it requires an act of parliament, as they originally were?

  2. The establishment fights back. This all stinks and you can only see delay and obstruction to Article 50 ever being invoked.

    1. Jonas, since Magna Carta the executive branch (aka the government) has been bound by law. The position of the executive in legal terms is below Parliament and in some ways below the judiciary, at least in terms of declaring what the law is. The executive can’t just make up law as it goes along. It can sign treaties and until now it was thought they could un-sign them (they’re effective as part of international but not domestic law until Parliament ratifies them – typically). But the executive is accountable to Parliament and if Parliament declares a rule then in law the executive must obey it.

      This isn’t an establishment stitchup, it’s how our constitution works.

      1. The argument laid bare is the representatives of the people who chose to leave, are not bound to representing the people who chose to leave.
        The ramifications of this straw clutching are far reaching and have very serious consequences for “our” democracy.

        1. Sam that’s not the argument. The argument is simply that Number 10 does not have the legal authority within our constitution to press the Article 50 button. That’s a question of law.

          By way of addressing your language, MPSs are ‘bound’ by accountability to Parliament day-to-day and in elections at election time. These are the legal facts. You say “representing”, but do you mean representing the people’s best interests or simply following every instruction of voters no matter how suicidal for the country? There’s a huge difference between the two. In any case the referendum was a political instruction to consider opinion, not a legally binding instruction to act. Nobody can bind Parliamentarians – Parliament is supreme in our legal system.

  3. I am not part of the establishment and I see nothing but good coming from taking our time and thinking about exactly what we want from this. “Leave” don’t know, they just want out and bugger the rest, sorry, dude, but that ain’t good enough.

    1. People who voted out are not illiterate,many off them know more about the Exit of Britain,than people give them credit for …Even if Mishcon re reya , successfully challenge the Exit , the people will then challenge any further ruling to block the Exit … Demographic vote was won …the people have spoken …and the only ones who seem to have a problem with leaving the E.U. are the ones who are financially stable …where’s as the rest have seen no evidence of any kind that being in the E.U has improved there lives … fisheries, farmers ,the ordinary working class.who have the right to vote as they please ….

      1. Mishcon de Reya are not challenging exit.

        They are challenging the idea that exit can occur without an act of parliment.

        Clarification of the legal position is in the interests of everyone, those in favour of exit as well as remain. Imagine if David Cameron gave article 50 notification and it was accepted by the EU but challenged in the UK courts and overturned. How would that situation benefit anyone?

  4. If a claim were made in both England and Scotland and different positions were reached, are there other cases (or statute) that point to how the Supreme Court resolves this?

  5. “if the government concedes there has to be an Act … then Brexit becomes even less likely.”

    Forgive my ignorance, but why does it become even less likely? The People have spoken have they not? And all parties agreed to abide by their decision.

    1. All parties, which in this case would be all MPs, did not agree to vote as indicated by the popular vote.

      I don’t actually remember a single MP commenting on possible parliamentary votes (I doubt many thought this far ahead).

      Not that it would matter. Even if they had agreed, as has been made clear since the result, campaign statements can be made up and ignored as needed.

  6. I read it that the referendum was advisory, a way to gauge the mood of the nation. That is not really open to dispute. It would appear from the press release that the action is trying to rule out the ability for the Prime Minister to trigger Article 50 on the basis of this result alone. Proper parliamentary due process should be used in a decision of this magnitude. It has already been established that some voted on the basis of ‘hypothetical’ arguments such as more money for the NHS or securing our borders, others believed – as stated on the Vote Leave website – that the result would be used as a bargaining tool and Article 50 may not even be triggered. My feeling is that the whole process was deeply flawed and parliament should be able to scrutinise. It has been noted that a majority of MPs supported remaining in the EU so to proceed down this path it follows that we should elect a new bunch. Just my opinion as an interested layman.

  7. Interesting thoughts on this, will be interested to see how it bans out. It does beg the question though, why were these issues not looked at before referendum was called? Would have saved an awful lot of painful campaigning!

  8. Mishcon De Reya are not the first.

    I issued proceedings in the Administrative Court in London on 28 June to challenge the Government over any potential Article 50 notification. This is the first Article 50 claim in the High Court and it will determine all of the relevant issues.

    The Judge has ordered expedition of my claim and has ordered the Government to respond to my claim by this coming Tuesday, and in its Order the High Court has said that my claim raises issues of constitutional importance. I am seeking an interim injunction to prevent an Article 50 notification.

    So proceedings are already on foot and I am confident of succeeding.

    My interest is purely to uphold the rule of law. Only Parliament can authorise the UK’s withdrawal from the EU. The Government cannot do so unless Parliament gives its prior approval.

  9. Even if you are right and the decision is upheld just what do you think the consequences of defying the 17 million people that voted leave would be hmmm? At the very least there would be civil unrest and at worst repeats of the violence throughout many major cities that occured not so very long ago. Any parliament that defies the will of the people takes a VERY dangerous route. The people will never forgive or forget such an act and i hope never to be around should such a thing happen.

    1. The closeness of the outcome coupled misinformation and cognitive dissonance associated with the referendum suggest that the issue of any constitutional change such at invoking article 50 is properly left to the people’s better informed representatives in parliament. The only certainty is that whatever they decide half the country will be deeply troubled.

    2. “Will of the people” “Will of the people” “Let’s blow up our economy and live on turnips!” “Time for the Great Leap Forward!” “Let’s lock up the experts!” “Will of the people!” “Hurrah!”

  10. It could be argued that where all the people have been directly asked by Parliament to decide an issue in a national referendum that its result is supreme over Parliament and could not be subject further to ratification by Parliament’s elected representatives.

    “In free governments, the rulers are the servants and the people their superiors and sovereigns”. Benjamin Franklin

    1. Geoff Dare:

      The point, however, is that Parliament was told the precise opposite. Consider, for example, the following excerpt from the Briefing Paper on the Bill (page 25):

      “This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.”

    2. “Servant, get my shotgun. I wish to chastise my family with bullets. It will improve their health.”

      “Why of course, master. You are as Dicey says, the true sovereign, and I will do whatever you command no matter how insane and self-destructive.”

  11. This could open a very large can of worms if the government decides that no Act is necessary. Supposing the new PM gives formal notice to the EU that Article 50 is being triggered, and thus negotiations on the exit terms commence. But then this is successfully challenged in the courts, which rule that the government is not authorised to give notice under Article 50 without the express consent of Parliament.

    Would the EU then be required to accept the ruling, and revoke (or, at least, suspend) their acceptance of the notification until the issue was resolved? Or could they (and would they) say “sorry, that’s an internal problem for the UK government, as far as we are concerned Article 50 has been triggered and there is no going back”?

    If the latter, what happens if Parliament subsequently refuses to authorise an Article 50 notification? Could we be, in effect, expelled from the EU even though our own courts have said that we have not legitimately notified the EU of our decision to leave?

    Of course, this all becomes entirely moot of the government decides to seek Parliament’s approval anyway. Which I suspect it will, if only to ensure that the lid remains firmly on this particular canister of lumbricus terrestris. The question of what happens if the government loses that vote is an entirely different one.

  12. It is a pity no-one has actually read Section 2 of the European Community Act 1972.

    Section 2 – General implementation of Treaties.

    (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.”

    All later Treaties were of course incorporated into the 1972 Act as and when they were signed, including the Lisbon Treaty and its Exit Clause which is a “right” under that Treaty, technically.

    Anyone notice the words “without further enactment”? Do they mean what they seem to mean? Just wondered.

    1. They do. Some EU legislation – regulations – have effect in Member States automatically when passed by the Council. So s.2(1) of the ECA automatically implements them in the UK. Other EU legislation – directives – has to be specifically implemented by each Member State, so s.2(2) gives Ministers a power to do this. Nice to make use of my EC law lectures, while they’re still relevant.

      1. Thanks – only just seen this. But still not quite sure if Article 50 comes under s.2(1) or s.2(2) as it is neither a Regulation nor a Directive!
        Would love to read your EC law lectures, if they have been published anywhere. I did law at Uni for a year, but switched to something else. I like reading statutes, and judgments concerning statute law, and I think it is too easy for civil lawyers to avoid statutes (until they get to the Court of Appeal and higher).

  13. It seems to me, that with a technicality, the will of the majority that bothered to vote, is revoked, would be a turning point in UK political history. A very dangerous fracture would occur, with possible terrifying results. It is the seeds of civil unrest, the Government not honouring its promise, & when Europe is in such poor health, just could be the longest suicide note to democracy in European history. The EU will dissolve eventually, but unless the UK is clear of it, the future is very troubling.

  14. My response to a decision by the UK High Court on the Brexit matter that would make null and void the authority of Parliament, would be to abandon the notion of “Democracy” in the UK, as a FAILED EXPERIEMNT! For!… if UK’s Parliament cannot effect a DEMOCRATIC VOTE on Article 50 of the Lisbon Treaty, then the role of the UK Parliament in upholding democracy in Britain, is a SHAM!… and it might as well fold its “tent (like Hermione Granger did in Harry Potter!)”, and go home!… that is, if Britain– in that event!– will, indeed, have a home!
    —–
    Here’s the “rub”!… the “Brexit result” is a said “Democratic victory” for a majority of eligible British voters!… HOWEVER!… an equally “Democratic victory” was realized for each and every member who now holds a seat in the British House of Commons! And so!… if one is to respect the outcome of the Brexit result on the basis of a “Democratic vote”… SURELY!… one must EQUALLY RESPECT the decisionmaking of the members of Britains Parliament, who have– likewise!– received a “Democratic vote” to serve the people of Britain! The “Brexit winners” were not elected to run the affairs of the remaining peoples of Britain!… the members of UK’s Parliament, were!
    —–
    To close… in the LIGHT of the PSEUDODEMOCRATIC manner in which “Democracy” is effected in EVERY COUNTRY that claims ownership of that notion, there is cause for concern about ALL of the said “wins” that “Democracies” have alleged! But leaving that GREATER ISSUE aside for the moment!… what we’re debating here, is the “Democracy” of a Brexit result versus the “Democracy” of a “Parliamentary elections result” on the one hand, and a “Parliamentary elections result” versus the “election” of an incoming PM, on the other! In both instances, Britain’s Parliamentary members would appear to be beset by both “clamorous whimsy”, and “executive decree”! And it’s hard to say, which is more problematic! But one thing is certain!… whoever “wins” this RACE OF RULERS!… Brexiteers, Executeers, or Electeers!… it is the WHOLE OF BRITAIN that will suffer, or survive the aftermath!… along with those, who have joined in allegiance with Britain!
    —–
    Please!… no emails!

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