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Over the last few days, the three of the most senior judges in the United Kingdom – the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales – have presided over hearings in the Divisional Court that could potentially determine the timetable and, ultimately, the fate of Brexit.
The hearings were a judicial review into whether the Prime Minister has the authority to invoke Royal Prerogative to trigger Article 50 of the Lisbon Treaty or whether this requires the assent of Parliament.
The government took the unusual step of sending the Attorney General, Jeremy Wright QC, as part of their legal team.
Those seeking the judicial review argue that the referendum in June was merely consultative and, in itself, does not constitute a decision to leave. Instead, they contest that, as activating Article 50 effectively repeals the European Communities Act 1972 which was passed by Parliament, that this also requires approval by Parliament.
The government has countered that, as triggering Article 50 is concerned with ending a treaty with the other European Union member states, this is within the remit of prerogative powers. These are executive powers allowing the government to act without requiring recourse to Parliament and, it is argued, are the norm when making or ending international treaties.
Article 50 itself states that any member state may leave “in accordance with its own constitutional requirements”. The vagueness of this phrase has enabled both sides to promulgate differing interpretations.
The judges are expected to deliver their ruling within the next two weeks with the losing side almost certain to appeal.
A similar case is already awaiting judgement in Northern Ireland with the additional aspect of the devolution legislation which, it is contended, would prevent triggering Article 50 without consultation. Again, the losing side is expected to appeal.
Given the timeframe, the unusual measure has been adopted to allow these appeals to be made directly to the Supreme Court, bypassing the Court of Appeal.
In what could be the ultimate irony, it is entirely possible that the Supreme Court will defer to the European Court of Justice to interpret the meaning of “in accordance with its own constitutional requirements”.
The whole process is throwing out a raft of deeply complex constitutional questions the answers to which will determine when and, in reality, whether Article 50 will be activated.
All this against a backdrop of ongoing economic uncertainty that is beginning to have a tangible effect with inflation rising from 0.6% to 1.0% in September whilst unemployment for the three months to August has stabilised at 4.9% of the workforce.
We will be monitoring developments and looking at the economic impact throughout this process. In the meantime, if you have any questions, please feel free to email us at tax@cooperfaure.co.uk.
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