It's some time since I wrote about the Article 50 challenge - 13th June in fact - mainly because there was no good news. This if you remember is a challenge about whether or not the government has made a constitutionally sound "decision" that we should leave the EU. It's the argument of David Wolchover, a link to which you can find on the side bar of this blog. The case went to the High Court on 12th June where it was dismissed, as I noted the following day. You can now see the full judgement HERE.
However, now they have had time to chew it over, the legal team for the claimant have decided to go to the Appeal Court. I thought the arguments in our favour were good so the HC decision was disappointing but nonetheless I still think it's right and I hope the Appeal Court will see it our way.
The Article 50 Challenge page is HERE - where you can read their latest update and perhaps make a contribution to funds.
Essentially, it turns on the meaning of Article 50. Article 50 (1) is about a member state "deciding" to withdraw according to its constitutional requirements. Article 50(2) is about "notifying" the EU of that decision. The legal team's claim is that the PM has done the second bit but not the first. They are seeking to make a distinction - as Article 50 does - between making and notifying the decision.
If you accept there IS a distinction and I am sure there is in both logical and legal circles, then the next question is: who made the decision to leave and where? The Article 50 Challenge team asked the government this question but never got a straight answer and as they say, "the Prime Minister herself, had declared on many occasions that the British people had decided the matter of withdrawal, that there was no scope for any further political decision and that Parliament was under a duty to implement the People’s decision". Davis has made the same point in the HoC.
But constitutionally in our parliamentary democracy the "will of the people" means nothing - until parliament, as the ultimate sovereign authority so decides. This was confirmed in the Gina Miller case where the Supreme Court ruled at paragraph §16 of their judgement, that:
“The notification under Article 50(2) is of a decision under Article 50(1). If the Crown has no prerogative power under the constitutional law of the UK to give notice under Article 50(2) then it would appear to follow that under the provisions of Article 50(1) it cannot on behalf of the United Kingdom acting solely under its prerogative powers, make a decision to withdraw in accordance with the United Kingdom’s own constitutional requirements.”
“...ruled (paragraph §13 of its judgement) that the Act “plainly contemplated and encompassed the power to take a decision to withdraw”. In this, it disregarded the long title of the Act. It further ruled that the Prime Minister’s letter itself contains a decision” and (in paragraph §15) that the letter spoke “the language of decision not of notification”. Although the Court was right to find that “there would indeed be no point in giving notice of withdrawal in the absence of a decision to withdraw under Article 50(1)”, it was wrong to draw the conclusion that there must have been an implicit decision to withdraw. It was wrong because it disregarded the fact that Parliament had been told, and by all indications had accepted, that the decision to withdraw had already been made. Since Parliament effectively treated the political will of the electorate as if it were a legal decision, the Court can neither hold that Parliament decided the policy of withdrawal nor impute to Parliament an intention to let the Prime Minister decide the policy".
You can begin to see the problem. The PM and the Brexit Secretary have both explicitly said the British people took the decision but the HC now says, no, the PM took the decision but who gave her the authority? Parliament didn't do so because it had been told the "decision" had already been made - and let's not forget, in an advisory referendum. It's confusing isn't it?
And let's not forget what we are considering is the most important decision this country has made for a generation. There cannot be any legal doubt about the constitutional propriety of the decision.
So, an appeal will go ahead because as the A50 Challenge team say:
In matters of such moment as we are considering the public might reasonably expect the Government to act prudently, with minute attention to the legal requirements. If our claim is valid, and the government has committed legal errors in the Brexit process, it is unworthy of the government to argue, as it has argued, that its errors should be overlooked because of the momentous consequences that could ensue, if our claim were upheld and a Court declaration of error were pronounced. It is not only unworthy but also short-sighted. It would be far better for government and the country that any proven errors should be put right in a domestic forum than exposed in the forum of the European Court of Justice.
I don't know when the case is scheduled but when I find out I'll post it here.
