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

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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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