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13 October 2016
Issue: 7718 / Categories: Legal News
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Art 50: the battle begins

Can government trigger Brexit without Act of Parliament?

A constitutional dispute over who is entitled to trigger Art 50 is due to be heard by Lord Thomas, the Lord Chief Justice, in the High Court this week.

Gina Miller and Deir Dos Santos—represented by solicitors Mishcon de Reya, Edwin Coe and Bindmans—will challenge the right of the government to begin the process of withdrawing the UK from the EU without a vote in Parliament.

The case centres on whether Prime Minister Theresa May can exercise the Royal prerogative and act unilaterally or whether only Parliament can reverse rights that it bestowed, namely the citizenship rights introduced by the European Communities Act 1972. Lord Thomas will also consider whether the EU referendum outcome was binding or merely advisory.

The claimants’ arguments include: that the prerogative power has been implicitly abrogated by domestic statutory provisions; if prerogative does exist then it does not extend to abrogating or removing fundamental rights such as citizenship; and removing fundamental rights derived from EU membership would be an abuse of prerogative power.

The government’s case includes the points that giving notice under Art 50 is an administrative act within the executive’s power, that the decision to leave the EU is not justiciable, and that commencing the Art 50 process would not change any common law or statute.

Writing in NLJ this week, Michael Zander QC, Emeritus Professor of the LSE, says: “A crucial issue will be how the Art 50 notification should be regarded. The government will contend that it does no more than notify. The claimants will argue that in reality it has serious effects and that the court should have regard to the substance not the form.”

Issue: 7718 / Categories: Legal News
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MOVERS & SHAKERS

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

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Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

Laytons ETL—Alec Cameron

Laytons ETL—Alec Cameron

Laytons ETL appoints new partner and head of intellectual property disputes

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Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
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The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
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