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Brexit: one of the most significant points of constitutional law

Author: Gail Harris

On June 23 2016, the UK voted 52% to 48% to leave the European Union.

Almost immediately challenges to the decision began in what has now become one of the most significant points of constitutional law.

The key issues are whether Article 50, which formally begins the two-year process of leaving the EU, can be invoked without Parliamentary approval and whether the EU referendum result was accordingly legally binding.

The cost of taking legal advice on whether the government was acting lawfully in triggering Article 50 of the Lisbon Treaty without Parliamentary approval was funded through a crowdfunding appeal.

There then followed a series of judicial review applications lodged over the government’s intention to invoke Article 50 without Parliamentary approval.   A judicial review is a formal process for challenging any decision made by a central or local government, including the government itself, and any other public body.

Judicial review applicants include Gina Miller, an investment manager and philanthropist, who voted to remain in the EU. Others include a London hairdresser, Deir Dos Santos and Britons living in France, who have brought their judicial review under the banner of ‘Fair Deal for Expats’.

The judicial review applications resulted in the High Court ruling on what is one of the most ‘constitutionally important court cases in generations’.

The High Court has decided that the government must have parliamentary approval before the process of leaving the EU can begin.

Commenting on the decision, Chief Lord Justice, Lord Thomas of Cwngiedd, said: “The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.”

In their ruling, the three judges, who examined the case, held that government could not change or discard people’s rights under British law, unless Parliament gave authority to do so and triggering Article 50 would in fact invoke a fundamental change to people’s rights.

The government will now appeal the court’s decision on the grounds that the June 2016 referendum was only carried out after the Commons voted, six-to-one, to give the decision to the British people who subsequently voted to leave.

EU leaders have urged the UK to begin the exit process as soon as possible and Theresa May has commented that the High Court decision will not “derail Article 50 or the timetable we have set out”.

The government’s appeal is expected to be heard by the Supreme Court before the end of the year.


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