Article 50 Brexit appeal being heard in the Supreme Court

Tue, 06 Dec 2016

Manjit Gill QC and Ramby  de Mello of No5 Chambers London, (with Tony Muman as additional junior and instructed by Stuart Luke and Martin Bridger of Bhatia Best) act on behalf of two interested parties (AB, KK and Children ) in the Brexit appeal currently being heard in the Supreme Court.

The appeal brought by the Government against the judgment of the Divisional Court in the case of Gina Miller and Dos Santos started on the 5 December and will be heard over the next three days until the 8 December. The main claimants in the case are Ms Miller and Mr Santos.  In addition there are two interested parties and several interveners including representatives acting on behalf of the Welsh, Scottish and Northern Ireland Government.  Because there are a number of legal representatives taking part in the appeal the Supreme Court has allocated a tight time table for oral submissions.

The Government is represented by the Attorney General who is also from No5 Chambers. He leads a team of lawyers on behalf of the Government.

Mr Gill QC and Mr de Mello act on behalf of two interested parties who have been granted, on their request, anonymity. The reason the President of the Supreme Court, at the start of the proceedings, granted the interested parties anonymity is because the interested parties have a well-founded fear of adverse publicity, hate mail and harm from those who oppose the case being brought.

They are the only parties in the proceedings who represent the position of several thousands of EEA nationals and their family members who will be directly affected by the giving of notice under Article 50(2).  One of the interested parties they represent includes a mother with a dependent child.  

They will argue that the giving of the notice under Article 50(2) TEU by the executive without the approval and authority of Parliament is unconstitutional and unlawful because the executive cannot exercise its prerogative to alter rights of residence enjoyed by EEA nationals and their family members without Parliament authorising them to do so. They will submit that the giving of notification under Article 50(2) that the United Kingdom intends to withdraw from the EU will bring to an end, at the point of withdrawal, the rights of residence and the other fundamental rights enjoyed by EEA nationals and their family members exercising European Union rights in the United Kingdom.  

Moreover they will argue that the giving of notice under article 50(2) (without an Act of Parliament) will expose this class of persons to criminal liability and the risk of prosecution under the Immigration Act 1971.  They will say that the executive cannot exercise their prerogative in this manner to expose them to criminal liability.

They will also say that the Referendum Act 2015 is correctly characterised, by the Divisional Court, as advisory in nature particularly because there was no discussion by Parliament at that time about the financial implications which will inevitably follow on giving of notice under Article 50(2). 

Before any decision is taken under Article 50(1) TEU and any decision is taken to give notice under Article 50(2) TEU, which decisions will have far reaching financial implications on the UK’s economy, there must first be approval by H.M. Treasury and then by Parliament before such a decision can lawfully be made.

Their written case is published on the Supreme Court Website which may be found at the Supreme Court website here.

Mr Gill QC and Mr de Mello will amplify their written case in their oral submissions with particular reference to the situation of EEA nationals and their children in the UK who will be directly affected by the executive giving of notice under Article 50(2).

The Supreme Court is expected to give its judgment in the early part of 2017.

To view Manjit Gill QC's profile please click here and for Ramby de Mello's please click here.

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