Government lawyers at first legal challenge to process of Brexit suggest case is likely to end up in supreme court

Theresa May will not trigger article 50 of the Lisbon treaty initiating the UK’s departure from the European Union before the end of 2016, the high court has been told.

At the opening of the first legal challenge to the process of Brexit, government lawyers conceded that the politically sensitive case was likely to be appealed up to the supreme court.

At least seven private actions – arguing that only parliament and not the prime minister has the authority to invoke article 50 – have been identified to the court.

Confirming that ministers are not aiming to push the exit button until next year at the earliest, Jason Coppel QC, for the government, conceded that there was nonetheless “some urgency” to the issue.

“Notification [triggering] article 50 will not occur before the end of 2016,” Coppel told the court. Should anything change, he promised, the court would be given advance notice.



That timetable is broadly in line with recent comments from the new government frontbench. The defendant appointed to resist the action is David Davis, whose formal title is secretary of state for exiting the European Union.

In an article for the Sun last week, the newly appointed Davis said the process of consulting “should be completed to allow triggering of article 50 before or by the start of next year”. There have been reports that civil servants were working on a deadline of Christmas this year while Theresa May has indicated that she wants to secure the support of the SNP leader, Nicola Sturgeon, before beginning the exit process.







No question of whether the court has jurisdiction to decide the arcane constitutional issue was raised at the opening of the hearing. Sir Brian Leveson, one of two judges in charge of the directions hearing, said the full trial would take place in October.

So many lawyers participated in the first stage of the legal challenge that proceedings were moved to the lord chief justice’s expansive, Gothic wood-panelled courtroom, the largest in the Royal Courts of Justice.



Surveying the benches, Leveson remarked upon the “bewildering array of legal talent” and acknowledged that the case involved matter of great constitutional importance. The lord chief justice, Lord Thomas of Cwmgiedd, is due to hear the substantive case in the autumn.



The lead case for the legal challenge will be that brought by an investment manager and philanthropist , Gina Miller, 51, who lives in London. Her claim is being coordinated by the law firm Mishcon de Reya.



She attended the hearing and afterwards said: “We believe in a fair society. This is very much along the lines of my belief [as a remain voter] ... This case is all about the sovereignty of parliament. It is very important that the (article 50) issues are dealt with in a serious and grown-up way. We are making sure that happens.”

Lord Pannick QC, who is instructed by Mishcon de Reya, said the law firm had already been subjected to racist and antisemitic abuse.

“The publicity that has accompanied notification of the legal issue has provoked a large quantity of abuse directed at my solicitors, Mishcon de Reya,” Pannick said.



“It’s racist abuse, it’s antisemitic abuse and it’s objectionable. It’s contempt of court for people to make threats [in relation to live proceedings]. We have asked that the names of those people who are making the [additional] claims should be redacted. People have been deterred from [making legal claims] by the abuse. It’s a very serious criminal matter for people to make threats.”

Leveson said that interfering with the course of justice by making threats was “an extremely serious matter”. He added: “Apart from the commission of a criminal offence, there’s a real risk that behaviour of this type is a contempt of court.”



Brexit supporters staged a demonstration outside Mishcon de Reya’s London office earlier this month with a banner and placards declaring: “Invoke article 50 now” and “Uphold the Brexit vote”.

One of the challenges has been brought by Deir Dos Santos, a British citizen who works as a hairdresser. He has also been abused online since his involvement was revealed. His claim will be heard alongside Miller’s though he may drop back to become an interested party depending on whether he obtains a protected costs order. Dos Santos was not in court on Tuesday.



The Dos Santos claim argues: “The result of the referendum is not legally binding in the sense that it is advisory only and there is no obligation [on the government] to give effect to the referendum decision.

“However, the [previous] prime minister has stated on numerous occasions that it is his intention to give effect to the referendum decision and organise the United Kingdom’s withdrawal from the European Union.

Facebook Twitter Pinterest Pro-Brexit supporters urge Theresa May to invoke article 50 on her appointment as Britain’s new prime minister. Photograph: Jack Taylor/Getty Images

“The extract from [Cameron’s] resignation speech ... makes it clear that [the government] is of the view that the prime minister of the day has the power under article 50 (2) of the Lisbon treaty to trigger article 50 without reference to parliament.”

The government says its powers are based on the royal prerogative.



That approach, Santos’s lawyers maintain, is “ultra vires” – beyond the legitimate powers of the government – because under the UK’s constitutional requirements, notification to the EU council of withdrawal “can only be given with the prior authorisation of the UK parliament”.

Dominic Chambers QC, an expert in international and commercial law from Maitland Chambers in London, and Jessica Simor QC, of Matrix Chambers, are acting for Dos Santos. The London law firm Edwin Coe is coordinating the Dos Santos case.



Deadline approaches for government response to Brexit legal challenge Read more

Lawyers representing Britons living in France are also expected to join the case.

The legal exchanges were permeated with reluctant references to working through the summer holidays to meet legal deadlines for exchanges of documents. Helen Mountfield QC, who represented some of the unidentified claimants, observed: “It’s buckets and spades down”. Leveson, smiling, replied: “August is always a good month to work in.”



The majority of MPs at Westminster are in favour of Britain remaining inside the EU. Moves to hand parliament ultimate authority over article 50 have been criticised as a devious and underhand means of frustrating Brexit.

Lawyers for the claimants insist the legal challenge is concerned with the constitutional principle of parliamentary sovereignty rather than being engineered for a particular political outcome.



Whether the majority of MPs who support remaining in the EU may now feel morally bound to vote in favour of Brexit if the issue comes to parliament is another question.

