The Strand has been busier than usual this week, as lawyers and members of the public alike flock to the Royal Courts of Justice to watch the Article 50 argument play out. Here's what you need to know about the case, what it means for Brexit and what happens next:
What has happened in court so far?
The case formally started last Thursday and is expected to run into tomorrow morning. The case has been brought by a number of parties, but the lead claimant is businesswoman Gina Miller. In a nutshell, she is arguing Article 50 cannot be triggered without an Act of Parliament in place.
Government's lawyers, who include Attorney General Jeremy Wright, are contending it has prerogative powers to give notice to leave the EU without first consulting parliament.
What happens next in terms of court proceedings?
Both sides are expected to round off their arguments tomorrow morning. Then, the three judges overseeing the case, the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales, will retire to consider their decision. A final ruling from the High Court is not expected for some time.
Whichever party loses has the option to appeal and, because a leapfrog process has already been set up, whoever that person is will be able to skip over the Court of Appeal and go straight to the Supreme Court. A hearing in the highest court is likely to take place in December.
Why is Gina Miller doing this?
Miller has previously told City A.M. she wants to see a "considered debate" in parliament before the UK leaves the EU, revealing she had concerns the public were misled in the run up to the referendum.
"The majority of MPs work very hard to represent their constituents and they're [in parliament] because they believe in taking civic responsibility and those are the people, the hundreds of them in parliament, that we need to debate this properly," she added.
What does the attorney general think?
Jeremy Wright has not minced his words when expressing his views on the court case. In a statement published before the hearing began, he said:
The country voted to leave the European Union, in a referendum approved by Act of Parliament. There must be no attempts to remain inside the EU, no attempts to re-join it through the back door, and no second referendum. We do not believe this case has legal merit.
How likely is a general election over this?
It's not impossible. Michael Madden at Winston & Strawn notes that, if the court decides in favour of Miller and that an Act of Parliament needs to be in place and parliament refuses to trigger Article 50, it could ultimately force a general election.
Kwasi Kwarteng, Conservative MP and Brexit supporter, has previously told City A.M. he thinks parliament would pass the law regardless of MPs' personal views, as to do otherwise would be highly unpopular with Leave voter constituents.
However, Madden pointed out: "MPs are voted into parliament because of their judgement and conscience, they are not delegates of their constituents and during their time as MPs must be free to vote in parliament in accordance with that judgement and conscience. Herein lies the crux of the case: if the court ultimately rules in favour of parliament having the say over the triggering of Article 50 there will be many 'remain' MPs whose electorate voted to leave."
Can this go up to the European Court of Justice?
It's highly unlikely, as cases are only referred here to determine the meaning of a piece of EU law. In this case, it's not the EU law the parties are disputing, as Article 50 allows a member state to leave the EU provided its within the rules of its own constitution. The problem here is the parties cannot decide on what the rules of the UK's unwritten constitution require.
Didn't we decide what we should do before the referendum?
Not exactly. "This is an unprecedented event due to the use of the referendum which has no formal role in the UK constitution," Madden noted.
Furthermore, the 2015 Act responsible for setting the wheels in motion for the referendum is unhelpfully silent on what should happen next. While the claimants point out that prerogative powers have not been expressly allowed, supporting their arguments, the government contests the wording of the Act makes it very clear the will of the people would always be carried through, therefore implying prerogative powers.
Timeline so far
- June 2016: UK votes to leave the EU, claimants ready their legal arguments.
- July 2016: Initial hearing takes place to determine the timeline of the case, and lawyers for the government confirm there are currently no plans to trigger Article 50 before the end of 2016
- October 2016: Case is heard in High Court in front of the Lord Chief Justice. A decision is not expected for some time.
- December 2016: Should whichever party doesn't win wish to appeal, a leapfrog process has been put in place to allow the case to reach the Supreme Court before the end of this year
- March 2017: Prime Minister Theresa May has confirmed she intends to invoke Article 50 by the end of next March