High Court to announce whether Parliament can Veto Brexit Referendum by
refusing to trigger Article 50
Newsletter published on 3 November 2016
(1) Brexit: High Court asked to steal
the referendum by the back door
(2) High Court to announce whether Parliament
can Veto Brexit Referendum
by refusing to trigger Article 50
Brexit: High Court asked to steal the referendum by the back door
May and Piggy Muldoon
Written By: Andrew Rosthorn
October 25, 2016 Last modified: October 25, 2016
WHEN Theresa May sent
her attorney general to court last week to stop
Parliament deciding on
Brexit, she stepped on a legal trip wire laid
forty years ago in New Zealand
by a former Desert Rat.
The chief justice of New Zealand, Sir Richard
Wild, ruled on June 11,
1976, that the country’s new prime minister had
breached Section 1 of
the 1688 Bill of Rights, a law enacted 288 years
earlier in London.
that the pretended power of suspending of laws,
or the execution of
laws, by regal authority, without consent of Parliament,
Sir Richard delivered judgment only eight days after trying
that is now known as Fitzgerald -v- Muldoon and Others.
one private citizen, assistant pensions clerk Paul Fitzgerald,
that before New Zealand’s incoming prime-minister could
assemble his new
parliament, the ‘abrasive, dogmatic and impatient’
Robert Muldoon, known
around Parliament House as ‘Piggy Muldoon’, had by
abolishing a pension fund
thereby suspended an act of parliament:
exercising a pretended power
to suspend a properly made law, the
Superannuation Act 1974.
Forty years later in Court Four of the High Court in London, before
Lord Chief Justice, the Master of the Rolls and Lord Justice Sales, in a
case to be cited decades from now as Santos & Miller -v- Secretary of
State for Exiting The European Union, the human rights barrister Helen
Mountfield QC raised the spectre of Fitzgerald -v- Muldoon.
Mountfield QC is crowd-funded by a group of EU citizens known as
People’s Challenge and was joined by eight QCs, including Lord
the businesswoman Gina Miller, and Dominic Chambers, for
hairdresser Deir Dos Santos, all asking for a ruling that
may only notify such a decision to the European council
article 50 (2) TEU once he has been properly authorised to do so by an
act of parliament. [...]
The battered pound sterling soared against
the US dollar on first
reports that that the Treasury Devil had conceded
that after enactment
of Article 50 a new treaty between the EU and the UK
would ‘be subject
to ratification process in the usual way’ and would be
likely to require
an act of Parliament for ratification.
Street made similar noises.
But David Pannick QC, a cross-bench baron in
the House of Lords who has
fought sixty cases in the European Court of
Justice and the European
Court of Human Rights, had already argued that
notifying the EU under
Article 50 of the Lisbon Treaty, which has never yet
been done by
anyone, is like firing a bullet from a rifle. It cannot be
the bullet is ever fired, the fate of the United Kingdom falls
hands of the governments of the other 27 member states of the
once you have pulled the trigger, the consequence follows. The
bullet hits the target. It hits the target on the date specified in
Article 50(3). [...]
The pound peaked at $1.23 on the world market as
the Lord Chief Justice
of England and Wales Lord Thomas of Cwmgiedd began
asking Mr Eadie for
more detail on the concession.
The pound slipped
back as Lord Thomas extracted an admission that the UK
government and the EU
could theroretically agree to take Parliament out
of the ratification
process. Lord Thomas asked,
But could the United Kingdom and the
European Union agree it didn’t
need ratification? Is that what you
Eadie QC replied ominously,
Dominic Raab, a parliamentary under secretary for civil liberties
Theresa May government, whose own father came to England in 1938 as a
refugee from Czechoslovakia, opened a personal attack on Gina
This is a pretty naked attempt to steal the referendum by
door. I don’t think it’s right that a fund manager with deep
legal friends in high places can try and block or frustrate that
process. It takes a pretty special kind of arrogance to think that one
person’s view trumps that of 33 million.
Theresa May delivered her
own public message to Miller and Santos, in a
conference speech in
Those people who argue that Article 50 can only be
agreement in both houses of parliament are not standing up
democracy; they’re trying to subvert it.
They’re not trying
to get Brexit right, they’re trying to kill it
by delaying it. They are
insulting the intelligence of the British
Court to announce whether Parliament can Veto Brexit Referendum
to trigger Article 50
legal challenge: High Court to announce whether Theresa May can
Parliament when triggering Article 50
The historic case could hand
Parliament the opportunity to challenge, or
even delay, the process of
leaving the European Union
Rob Merrick Deputy Political
Wednesday 2 November 2016 17:51 BST
The High Court will
rule tomorrow morning whether Theresa May has the
right to bypass Parliament
when she triggers Britain’s exit from the
judges will decide a historic case which will either allow that
start by the end of March - or could hand MPs and peers the
challenge, or even delay, the process.
Legal experts believe the case –
to determine whether the Prime Minister
can use the Royal Prerogative to
invoke Article 50, without the
involvement of Parliament – is "finely
balanced", after weeks of argument.
When it began, the Government was
expected to win, but the three High
Court judges have appeared far more
sceptical about its case than many
If it loses,
Parliament will be given the muscle to influence the
negotiating position, to demand regular checks on its
progress – or even to
choose when Article 50 is triggered.
Such a ruling will send tremors
through Downing Street, which is facing
growing criticism that it has no
strategy to deliver Ms May’s promise to
"make a success of
Already, in recent weeks, MPs have become far more outspoken in
demanding a say over what appears to be her determination to pursue a
so-called ‘hard Brexit’.
It seems likely that – whoever wins – an
appeal will go to the Supreme
Court, to be heard by a full panel of
Britain's top judges, or even to
the European Court of Justice.
at that point, the Government might be forced to change its
order to retain control of Article 50, perhaps by agreeing
the exit process
can be halted, if necessary.
That would represent a huge setback for the
Prime Minister who has
staked her authority on her insistence that "it is up
to the Government
to trigger Article 50 - and the Government
At the Conservative conference last month, she tore into anyone
for Parliament to influence the process, claiming they "are not
up for democracy, they’re trying to subvert it".
not trying to get Brexit right, they’re trying to kill it by
They are insulting the intelligence of the British people,"
"That is why, next week, I can tell you that the Attorney General
himself, Jeremy Wright, will act for the Government and resist them in
The challenge was brought by Gina Miller, a London
arguing the inevitable consequence of invoking Article 50 was
of statutory rights enjoyed by UK and EU citizens.
included the right to refer a legal case to the European Court of
of freedom of movement and to sell services – rights which
should only be
taken away by Parliament.
But the Attorney General argued the court
challenge was an attempt to
"invalidate" the public’s decision, in the June
referendum, to leave the EU.
To add to the tension, none of the lawyers
have been given advance
drafts of the judgment – as they usually are to
check for mistakes and
to prepare their submissions.
One expert said
that suggested concerns about leaks, or that that the
judgment was still
being refined, ahead of the 10am announcement.