New Article 50 legal challenges

I haven't seen a thread on the two new Article 50 legal challenges, both of which started fairly close to Christmas last year and hence seem to have got missed out in the coverage on these forums. In case there are pre-existing threads discussing these legal challenges, please feel free to merge this thread.

The Article 50 Challenge (Twitter hashtag #A50Challenge & @A50Challenge) is a case filed against the Government on 22nd December 2017 in the High Court of England and Wales and has received a response from the Government yesterday. Updates to their case are on their website linked to above.

The basis of this challenge is the text of Article 50 of the Treaty on European Union.

Article 50 wrote:1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
...

Referendums have never had any legal force in the UK, except when expressly so provided by Parliament. Indeed, there have only been three UK-wide referendums so far, with the first being about entering the EEC (as then) and the third being about exitting the EU (as now) - the second was the one on the voting system in May 2011, which was the only one in which it was expressly provided by Act of Parliament that the Government would implement its results.

Following the Gina Miller judgment of the Supreme Court, Parliament passed the European Union (Notification of Withdrawal) Act 2017 to confer power on the Prime Minister to notify the EU under the terms of Article 50.

However, there was never a decision taken by Parliament to actually trigger Article 50, by either a resolution or by Act of Parliament. It is unclear under the UK's uncodified constitution whether the Prime Minister can unilaterally trigger Article 50 or whether Parliamentary authorisation of the Prime Minister to notify triggering Article 50 implicitly meant that Parliament authorised such triggering.

This case will therefore wind its way to the UK Supreme Court to decide whether the triggering of Article 50 met the requirements of the UK's constitutional setup. If it is decided that the triggering of Article 50 was not in keeping with the UK's constitutional requirements, then, under EU law, Article 50 was never validly triggered and the whole process would effectively be null and void ab initio (from the start).

Note that this case is purely about UK domestic law & constitutional arrangements and not about EU law per se.

Although I will be following it closely from personal interest in constitutional law & procedure, I would not hold my breath on it. The flexibility of the UK constitution will allow some manner to be developed for the trigger to be legalised retrospectively if need be.

On the other hand, the case filed by the Good Law Project asks whether, once triggered, Article 50 can be reversed/revoked under EU law and if so, how (unilaterally by the UK, by the UK and all EU27 or by the UK and a qualified majority of EU27). Presidents Tusk and Juncker have said that it can be, as has the author of Article 50 itself, but the law on this matter is unclear and can only be clarified by a reference to the CJEU, the highest authority on EU law, of which Article 50 is a part. A report of the European Parliament on the same question also was unable to come to a clear conclusion.

This case has been filed in the Scottish Court of Session after the case filed in the High Court of Ireland on the same matter was withdrawn, apparently because of the reluctance of the Irish government to participate.

Excellent post but you have missed out info on the Scottish referendum.

On a side note this week some British Citizens living in the Netherlands have launched a legal challenge in the Dutch high court on whether British Citizens can keep their EU Citizen rights after Brexit.

Their argument is that the Treaty says EU Citizenship is additional to being a Member State of the EU. If the CJEU court agrees we will retain these rights after Brexit.

Britons in Netherlands take fight for their EU rights to Dutch court

Thank you, mkhan2525. I was not aware of the Dutch legal challenge. It does seem like the CJEU is likely to be busy with Brexit as well .

I was a bit lost about the reference to the Scottish referendum. Can you provide more information on that in another thread, if it is not a legal challenge, or in another post in this thread, if it is?

At a slight tangent to this thread, an article in the FT by Wolfgang Munchau as to why it is unlikely that the CJEU will allow the UK to withdraw the Article 50 notice unilaterally (in a nutshell, pour encourager les autres). He opines that now that Article 50 is triggered, either ways, the UK will lose out. If the UK leaves the EU, it has obvious implications as to the loss. But even if the UK remains in the EU now, it may have to lose many of the opt-outs it currently has. And that may not be acceptable to many MPs and even many members of the public. They may decide that if the UK were to lose on leaving and also lose on remaining, we may be better off leaving.

UCL Brexit Blog - Brexit EU Citizenship Rights of UK Nationals and the Court of Justice

What will happen to the EU citizenship rights of UK nationals after Brexit? A Dutch Court has caused quite a stir by making a reference to the European Court of Justice on the issue. Ronan McCrea explains why the Court of Justice should not, and probably won’t, accept it. 

Human Rights Post-Brexit: The Need for Legislation?
An analysis of the various sources for human rights in UK law and their interplay with each other.