Brexit legality to be challenged for the first time in the courts

The dispute could pit the judiciary against the power of the prime minister in a manner never seen before in British history

Tuesday 19 July 2016 10:22 BST

The judicial review will decide whether or no the Prime Minister can carry out Brexit without first consulting Parliament (Reuters)

British voters, it turns out, can’t actually remove their country from the European Union. Only MPs can do so.

Since the June 23 referendum, the debate has turned to whether new prime minister, Theresa May, can initiate Brexit without first seeking permission from Parliament.

The question has sparked what could turn into a wave of legal judicial reviews. The first one begins Tuesday.

1. What’s a judicial review?

It’s a court proceeding to weigh the legality of how a government decision has been reached.

Judicial reviews provide one of the few mechanisms available for members of the public to hold the state’s most powerful officials to account. Only those with “sufficient interest” are able to bring a suit, and they must first obtain permission for their case to be heard.

2. Who brought this case?

Deir Dos Santos, a UK hairdresser described by his lawyer as “just an ordinary guy,” filed the first lawsuit seeking to slow Brexit by challenging the prime minister’s right to start the exit without Parliament.

“If his rights are going to be taken away, he wants it done in a proper and lawful manner,” Dominic Chambers, Dos Santos’s lawyer, said.

Crowdfunding campaign raises over £27,000 to prosecute 'dishonest Brexit politicians'

3. What’s at stake?

Either the prime minister or Parliament must invoke Article 50 of the Lisbon Treaty in order to trigger the UK’s exit from the EU. Oliver Letwin, the minister overseeing the task force preparing for the exit negotiations before May appointed David Davis to head a new Brexit department, said it’s the prime minister’s responsibility.

Other legal experts disagree, saying a matter of this importance must go through Parliament. One of London’s biggest law firms, Mishcon de Reya, has threatened a legal challenge if Parliament doesn’t get a say.

The dispute could pit the judiciary against the power of the prime minister in a manner never seen before in British history.

4. Won’t Brexit happen no matter what?

May has pledged to respect the will of the people and carry out Brexit (though she’s in no rush).

So has Jeremy Corbyn, the leader of the opposition Labour Party. But before the June 23 vote, May and most members of Parliament advocated remaining in the EU.

If the UK continues to feel economic repercussions from its June 23 vote, who knows what could happen?

Should MPs vote against their constituents if they believe it’s ultimately in the national interest? At some point it could become relevant whether the prime minister or Parliament is in charge of pulling the trigger.

6 ways Britain leaving the EU will affect you

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1/66 ways Britain leaving the EU will affect you

6 ways Britain leaving the EU will affect you

More expensive foreign holidays

The first practical effect of a vote to Leave is that the pound will be worth less abroad, meaning foreign holidays will cost us more

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6 ways Britain leaving the EU will affect you

No immediate change in immigration status

The Prime Minister will have to address other immediate concerns. He is likely to reassure nationals of other EU countries living in the UK that their status is unchanged. That is what the Leave campaign has said, so, even after the Brexit negotiations are complete, those who are already in the UK would be allowed to stay

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6 ways Britain leaving the EU will affect you

Higher inflation

A lower pound means that imports would become more expensive. This is likely to mean the return of inflation – a phenomenon with which many of us are unfamiliar because prices have been stable for so long, rising at no more than about 2 per cent a year. The effect may probably not be particularly noticeable in the first few months. At first price rises would be confined to imported goods – food and clothes being the most obvious – but inflation has a tendency to spread and to gain its own momentum

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6 ways Britain leaving the EU will affect you

Interest rates might rise

The trouble with inflation is that the Bank of England has a legal obligation to keep it as close to 2 per cent a year as possible. If a fall in the pound threatens to push prices up faster than this, the Bank will raise interest rates. This acts against inflation in three ways. First, it makes the pound more attractive, because deposits in pounds will earn higher interest. Second, it reduces demand by putting up the cost of borrowing, and especially by taking larger mortgage payments out of the economy. Third, it makes it more expensive for businesses to borrow to expand output

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6 ways Britain leaving the EU will affect you

Did somebody say recession?

Mr Carney, the Treasury and a range of international economists have warned about this. Many Leave voters appear not to have believed them, or to think that they are exaggerating small, long-term effects. But there is no doubt that the Leave vote is a negative shock to the economy. This is because it changes expectations about the economy’s future performance. Even though Britain is not actually be leaving the EU for at least two years, companies and investors will start to move money out of Britain, or to scale back plans for expansion, because they are less confident about what would happen after 2018

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6 ways Britain leaving the EU will affect you

And we wouldn’t even get our money back

All this will be happening while the Prime Minister, whoever he or she is, is negotiating the terms of our future access to the EU single market. In the meantime, our trade with the EU would be unaffected, except that companies elsewhere in the EU may be less interested in buying from us or selling to us, expecting tariff barriers to go up in two years’ time. Whoever the Chancellor is, he or she may feel the need to bring in a new Budget

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5. What’s likely to happen?

In recent years, people challenging state actions via judicial reviews have prevailed just 1 or 2 per cent of the time. In one successful challenge, the Supreme Court overruled a decision by the attorney general and permitted the Guardian newspaper to obtain and publish letters written to lawmakers by Prince Charles.

But that case was small potatoes compared to the question of whether citizens will be able to use the courts to steer, delay and possibly derail the U.K.’s departure from the EU.

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Brexit legality to be challenged for the first time in the courts

The dispute could pit the judiciary against the power of the prime minister in a manner never seen before in British history