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05th September 2016

The decision to withdraw - a matter for the Prime Minister or Parliament?

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The Prime Minister has made it clear that “Brexit means Brexit” and that the decision to withdraw from the EU is one the Government will make (the exercise by the Prime Minister of the Crown’s prerogative power to withdraw from an international Treaty) and is not one for Parliament.

The Prime Minister has made it clear that “Brexit means Brexit” and that the decision to withdraw from the EU is one the Government will make (the exercise by the Prime Minister of the Crown’s prerogative power to withdraw from an international Treaty) and is not one for Parliament. Whilst no doubt inconvenient to those who would like the process of withdrawal to begin immediately and Parliament to be sidelined in favour of immediate action, there is still a fair amount of water that will need to flow under the bridge before the decision making process is settled and the Prime Minister can act on her stated intention. Although the media has reported that the Prime Minister’s intention to make the Article 50 Decision without reference to Parliament is based on advice received from Government lawyers, she will know that such advice cannot be definitive. This is because the UK does not have a written constitution which states how such a decision can be made. The advice can only be, just that, an opinion. So, what lies ahead? Parliamentary debate kicks off today as both Houses return for business for a fortnight and the Commons considers the case for a second referendum. This follows the e-petition which garnered 4 million signatures following the referendum result. Whatever the result of that debate (which will not bind the Government), the Article 50 (Lisbon Treaty) process is also to be considered by the Courts. There are now several applications for judicial review that are on foot in the English High Court, at least one of them ‘crowd-funded’. There are also less publicised review proceedings that have been issued in the Northern Ireland Courts (focusing on the relationship between Article 50 and the Belfast Agreement). The claimant in the lead English case is a private banker, Gina Miller of the investment firm SCM Group Private, who is making the case that the domestic constitutional requirement is for Parliamentary scrutiny and approval (as well as consultation with the devolved Governments of Scotland, Wales and Northern Ireland) before the Government can make the Article 50 decision. The Court timetable for that application requires the parties (and any interveners) to file their arguments with the Court by the end of this month. It is expected that there will be a hearing of the case mid-October, with any appeal (pretty well inevitable) being leapfrogged to the Supreme Court by the end of the year. In this context, it does not take a light year leap of reasoning to conclude that the present Court timetable will have been influential in the Prime Minister’s decision not to act on Article 50 before the first part of 2017. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.