Article 50 Challenge – A Fund Manager’s Revenge

BY JAMIE FOSTER

Today the High Court handed down its judgment in a challenge to the Government’s right to trigger Article 50 brought by investment manager Gina Miller (pictured). In a case that harks back to the days when powerful nobles used the courts to decide the fates of the people beneath them, Mrs Miller used part of her considerable fortune to challenge the deal apparently made with 17.5M British voters. The terms of that deal appeared to have been set in the now infamous £9M Referendum flyer sent out by the Government to all UK households:

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Apparently the High Court believes that this promise was not one the government was in a position to make. For the High Court, “The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses.” This constitutional position was central to the argument made by Mrs Miller’s champion, perhaps the greatest lawyer in the land, Lord Pannick. If Parliament gives us rights, he argued, only Parliament can take them away.

It may be unsurprising that the Government lawyers, Mrs May’s champions in this trial by combat, were outstripped by the peerless peer. Anyone who spends much time at the tournaments held in the higher courts knows Lord Pannick as an adversary whose shield is rarely dented. Nonetheless both the basis of the argument and the decision seem at odds with the reality that the 1972 Act created no real rights in and of itself. It merely passed the duty to make and unmake laws to the EU. The EU created rights that the EU could, of its own volition, and with no reference to the UK parliament, have taken away at any time.

This is particularly odd as the challenge was to Article 50 being triggered, not to the decision having been made to leave the EU. No one appears to be arguing that a majority in the largest turned-out vote in UK political history hadn’t made that decision.

Odder still when one considers that Article 50 (2), the subject of the challenge, states that “A member state which decides to withdraw shall notify the European Council of its intention.” ‘Shall’ is a mandatory. English law has long distinguished ‘shall’ from ‘may’ or ‘must vote on whether to’. Shall means that EU law, currently supreme in the UK, requires a notification be made. There is no provision for the delay that appears to have taken place. There is no provision for a debate on whether or not to. Shall means shall.

So it would appear that the High Court has held that Parliament should ignore its EU treaty obligations and have a vote on whether or not to implement the clearly expressed views of the majority of the UK electorate. The reason for this would appear to be that if Parliament votes to give away the law making powers it was entrusted with by the electorate to a foreign power, no one but Parliament or that foreign power is able to return them.

It will be fascinating to see whether our Government and its shy Remainer leader decides to appeal. It will be equally fascinating to see if the appeal is left in the hands of the Government lawyers who lost the case in the High Court. Perhaps most fascinating of all is the prospect that an appeal doesn’t happen, and that Parliament debates and votes on whether to trigger Article 50. I would predict that the words said and votes cast in such a debate could determine the future careers of individual MPs. Remember when they thought coming out for Remain was in their best career interests? I suspect those days are gone.

Watch this space.