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The battle for Brexit moves to the High Court

13 October 2016

11:14 AM

13 October 2016

11:14 AM

More than 17 million people voted for Brexit. Yet for some, that mandate isn’t quite enough. Today, the High Court is hearing a legal challenge on whether the Government should be allowed to pull the Article 50 trigger without the direct say-so of Parliament. The Commons might have spent hours debating Brexit over the last few days but for Gina Miller – the fund manager bringing the High Court case – only another vote will do. Here’s what she said on the Today show explaining her argument:

‘It’s actually very simple, our case is that this is a fundamental constitutional case saying that parliament and parliament alone can take away rights. The Government can not use this ancient secretive royal prerogative to do so.’

But is Miller just a bad loser? No, she said, before insisting ‘we’re all leavers now’. So if that’s true, why the hold-up?


Miller is making this an argument about the division of powers between the executive and the legislature – murky waters in an uncodified constitution like Britain’s. And to be fair to those challenging the Government today, Theresa May hasn’t helped matters by making her biggest Brexit announcement at Tory conference rather than in Parliament, where she said simply she didn’t want to give a running commentary on negotiations.

To complicate matters, even the experts are split on who is responsible for kick starting Article 50. Here’s Parliament’s website’s somewhat opaque attempt at an explanation:

‘The Prime Minister has said it would be for his successor and his or her Cabinet to decide whether the House of Commons should have a vote on the decision to trigger Article 50, the formal process set out in the Treaty on European Union for member states to follow should they decide to leave the EU. Some legal commentators agree that prerogative powers would enable a Prime Minister to take this decision; some have suggested that Parliament could have a role, and others have gone further, arguing that prior parliamentary approval would be required before Article 50 could be invoked.’

This clear-as-mud summary makes fertile soil for a High Court battle. And the challenge today can’t be dismissed as easily as other more flippant attempts to question the referendum process (Lord Pannick QC’s involvement shows this is a serious case). Yet while it’s easy to be baffled or bored by the constitutional ins-and-outs of this, Miller gave the game away when she asked this:

‘Did the people who voted to leave really vote for an executive arm – for the PM and a handful of her ministers – to bypass Parliament? I’m sure leavers did not vote for that’

Of course, debating why people did or didn’t vote for Brexit is speculative at best. We’ve heard a lot of half-baked insight from politicians who have told us variously that people didn’t vote for hard Brexit (George Osborne); didn’t vote to put their neighbour out of work (Emily Thornberry); didn’t vote to lose jobs (Sadiq Khan); and they didn’t vote for Britain to become less secure or poorer (Philip Hammond). So the question remains: what did they vote for? And does Miller have a point?

In fact, the simplest response to this is written down in black and white on the ballot paper put to voters in June. The question asked during the referendum: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ Everything else sounds like a sideshow.


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