As parliament begins a series of debates about the Lord's amendments to the EU Withdrawal Bill, today and tomorrow (which I expect the government to win unfortunately) I thought I should remind you that there are still a couple of legal challenges to Brexit. One of them begins today at the High Court to determine if the Article 50 notification was legal. The case page is HERE.
This case is about whether or not there has been a "constitutional decision" about leaving the EU. We know there has been a referendum, but referenda are not law. They are advisory or political at best and in a parliamentary democracy it is argued, parliament must decide - but the government cannot point to a date or time when such a decision was made, in spite of having ample opportunity to do it.
So, this first case concerns the legality of notifying the EU of a decision that has not been made. The press don't seem to have picked this up in a big way, perhaps concluding it isn't important. But if it succeeds all hell will break loose!
The second is HERE and although I don't believe there is a date yet for a hearing, this argument is about what happens if parliament (or the EU parliament presumably) rejects the deal. Helen Mountfield QC puts it like this:
“In debating what might happen next, it is vital to remember what is still legally possible. It is politically, as well as constitutionally important to understand that the deed is not yet done. We are not yet tied to leaving the EU; and in fact the prime minister does not yet have power to take us out.”
Rejection of an UK/EU exit treaty (or even no treaty) does not mean that the UK falls out of the EU without a deal – “What happens if, as a result of that vote, parliament rejects whatever deal is on offer? The government says the only other option is to leave with no deal. That is simply constitutionally wrong. In the absence of parliamentary authority, the prime minister cannot take us out of the EU on any terms at all. That is what the rule of law means.”
