BREXIT: Divisional Court Rules that Government cannot trigger Art 50 without Parliament

Thu, 03 Nov 2016

Today’s landmark ruling that Parliament must vote on triggering Article 50 has been hailed as a strong endorsement of the rule of law.

And in what is described as one of the most important cases of the year, barristers from No5 Chambers were on both sides. The Attorney General Jeremey Wright QC MP led for the Government, while Manjit Gill QC and Ramby de Mello opposed him.

The Divisional Court ruled that the Government has no power to issue a notice under Art 50(2) of the Treaty on European Union without first seeking an Act of Parliament enabling it to do so.

The case was heard by the Lord Chief Justice, the Master of the Rolls and Sales LJ. The lead arguments were presented by Lord Pannick QC on behalf of Gina Miller and there were a number of other parties.

Manjit Gill QC, Ramby de Mello and Tony Muman (43 Temple Row) presented supportive and additional arguments on behalf of EEA nationals and their family members and in particular on behalf of children who will be affected by the Article 50 decision, including children whose carers are in the UK under the Zambrano judgment. They were instructed by Bhatia Best solicitors (Stuart Luke and Martin Bridger).

Manjit Gill QC of No5 Chambers, London, said: “The judgment is a strong endorsement of the rule of law and of Parliamentary supremacy over the executive.

“It is a sign of things to come as our courts begin to shape our constitutional law for what may be a post-Brexit future.”

“This issue affects all areas of law because EU law is implemented in hundreds of ways ranging across all fields of law.”

The issue is one of high constitutional principle. The Government’s argument would have sought to overturn a long-established constitutional settlement in this country in which Parliament, and not a government minister, is supreme.

Although ministers, acting on behalf of the Crown, have the power to enter into treaties with other nations or international organisations, they cannot do so without prior Parliamentary authority where the effect is to change the existing domestic law; all the more so, where fundamental human rights are involved.

But that is precisely what will happen if the government were to give the Article 50 notice without prior Parliamentary authority in the form of primary legislation. This is because the Art 50 trigger, once pulled, is in practice irreversible. Moreover, the Government accepted that it could not give conditional notice to the EU.

The government’s arguments that it was seeking to implement the will of the people were not accepted. The court accepted the arguments of the Claimants and Interested Parties and Interveners that the result of the EU referendum under the EU Referendum Act 2015 is merely advisory.

The court certified the matter as fit for a leap-frog appeal to the Supreme Court, cutting out the Court of Appeal. The Supreme Court hearing is likely to take place in early December.

No5 Chambers is a successful and award winning barristers’ chambers committed to delivering the highest standard of service from its offices in London, Birmingham, Bristol and Leicester. It has more than 250 members including 33 Queens Counsel.

Further information as to the impact of Brexit on EEA nationals, their families and on children will be made available. For inquiries, please contact Mr Gill QC’s and Mr de Mello’s clerks (Robert Woods, Geoff Carr , Abdul Hafeez on +44 845 210 5555 or [email protected]).

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

View the judgment here.

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