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Judges to rule on historic Brexit legal challenge 'as quickly as possible'

Published 18/10/2016

Prime Minister Theresa May wants to rely on historic prerogative powers to trigger Article 50 of the Lisbon Treaty to leave the EU - without the prior authorisation of Parliament
Prime Minister Theresa May wants to rely on historic prerogative powers to trigger Article 50 of the Lisbon Treaty to leave the EU - without the prior authorisation of Parliament

Leading judges with the task of ruling on the historic Brexit legal challenge aim to give their decision "as quickly as possible".

Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton and Lord Justice Sales reserved their decision on Tuesday at the end of a three-day hearing.

After hearing closing submissions from lawyers at the High Court in London, Lord Thomas announced: "We shall take time to consider the matter and give our judgment as quickly as possible."

A number of applicants have challenged Theresa May's strategy for Brexit in what has been described as one of the most important constitutional cases in generations.

They argue that the prime minister has no legal power to trigger Article 50 of the Lisbon Treaty to leave the European Union without the prior authorisation of Parliament.

Mrs May announced at the Conservative Party conference that she intends doing so by the end of March 2017.

The judges have heard submissions that the Government lacks legal power to use the royal prerogative to notify Article 50 and begin the process of removing statutory rights granted to UK citizens under the European Communities Act 1972, which made EU law part of UK law.

Government lawyers say that if the challenge succeeds, the Government ''could not give effect to the will and decision of the people, as clearly expressed in the referendum, to withdraw from the EU without further primary legislation''.

Because of the urgency and constitutional importance of the case, any appeal is expected to be heard by the Supreme Court, the highest court in the land, before the end of the year.

In final submissions on Tuesday, Government lawyers revealed that any new treaty agreement with the European Union following Brexit would "very likely" have to be ratified by Parliament.

A Government QC said the "view at the moment" was that ratification was likely if the royal prerogative was used, without prior parliamentary approval, to launch the Brexit process.

During the hearing, Lord Thomas said he was "slightly baffled" and - after more submissions - actually "baffled", by aspects of Government argument on the impact of Brexit on EU citizens' rights.

Jason Coppel QC, representing the Government, said those opposed to the use of the royal prerogative were "seriously over-stating" the effect that withdrawing from the EU would have on the loss of EU rights covered by domestic law.

Mr Coppel argued many EU rights were not covered by domestic law. He gave the example of British citizens living in France, saying the rights they enjoyed were pursuant to French immigration law.

Mr Coppel said there was also a complaint that notification of Article 50 would remove the right for UK citizens to vote in local elections in other EU countries in which they chose to live.

He said: "If Romania prevents a British citizen from voting in Romanian local elections, their cause of action is not under the European Communities Act, it is under Romanian law, which Romania has implemented as a result of its international obligations under the (EU) treaties."

He said: "That is not the removal of a right which is conferred by domestic law."

Lord Thomas said he did not understand Mr Coppel's argument, because rights to vote in local elections were "rights under the (EU) treaty".

The judge said: "I am sorry, I am slightly baffled. I don't understand why the content of these rights are not controlled by Parliament."

Mr Coppel replied: "Yes. Well, my lord, in part they are. But the case against us is that the act of notification, the withdrawal of the UK from the European Union, will bring rights to an end which are conferred by domestic law through the European Communities Act.

"That is the case against us."

Later Lord Thomas said he could not see how the Romanian local elections argument "fits in" to the Government's case, adding: "That is what, at the moment, I am baffled by."

Mr Coppel said he was trying to address what domestic law rights were actually being removed - "and I am sorry if I haven't been clear about that".

Press Association

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