The Brexit judicial review case is scheduled to start in the High Court today (13.10.16). The key issue to be decided is what is the lawful way for the government to trigger the UK’s departure from the EU?

On 19 July 2016 at the High Court, Sir Brian Leveson and Mr Justice Cranston held the opening hearing of the Brexit judicial review proceedings. These proceedings are important because the EU Referendum result in itself does not legally trigger Brexit, leaving the issue outstanding of what does. The opening hearing was to settle some preliminary administrative details, with the main hearing starting today.

The Government is arguing that the lawful process to trigger Brexit is for the Prime Minister to directly notify the European Council of the UK’s intention to withdraw from the EU, under Article 50 of the Treaty of Lisbon 2007. The Government argues that it can lawfully do so using its powers of the “royal prerogative”.

The Claimants are seeking a declaration by the court that the Prime Minister or the Secretary of State for Exiting the European Union can only lawfully notify the EU of Brexit under Article 50, with Parliament’s approval. The Claimants’ principal argument is that if the Government lodges an Article 50 notification without Parliament’s approval, this would undermine and remove British citizens’ rights under the European Communities Act 1972 (law through which the UK is an EU member). The Claimants’ argue that only Parliament has the power to undo the 1972 Act, not an individual.

A court decision against the Government has the potential to change the timing of Brexit, depending on the length of time the Parliamentary approval process takes. Lord Pannick, representing Gina Miller (one of the main claimants) has said that it was “extremely unlikely” that the government would trigger Article 50 without giving sufficient notice for the High Court to make its ruling on the role of MPs and for the Supreme Court to hear any appeal.

The Queen on the application of Santos v Secretary Of State For Exiting The European Union