By Michael Holden
Britain’s EU referendum in June had no constitutional substance at all, according to lawyers leading a bid to force the government to seek parliamentary approval before starting the formal process of leaving the bloc.
“It was an advisory referendum, no more than that,” David Pannick told the High Court on Thursday.
Prime Minister Theresa May has said she will trigger Article 50 of the EU Lisbon Treaty, the mechanism by which Britain begins a two-year process to leave the bloc, by the end of March next year and there will be no parliamentary vote beforehand.
But she is facing a legal challenge over whether the government can use a historical power known as royal prerogative, to decide when, how and whether to make this decision.
Several ministers have called this week’s legal challenge an attempt to subvert the democratic process but Pannick, representing the lead claimant, investment manager Gina Miller, denied the case was “merely camouflage” by those who wanted to stay in the EU.
He said it raised questions of fundamental constitutional importance.
Triggering Article 50 would begin an unstoppable process, he told the court, which would lead to rights such as freedom of movement of people, trade and services granted by the 1972 European Communities Act being stripped away by the government using an ancient power.
“Rights that have been created by parliament cannot be taken away by a minister,” he added.
The June 23 vote had “no legal or constitutional substance whatsoever” and was “as a matter of law an advisory referendum, no more than that.”
He added: “The court is not concerned with the political outcome of withdrawing this country from the European Union. Our legal claim is in support of parliamentary sovereignty.”
Parliament, he noted, might approve a bill to invoke Article 50, it might reject it or introduce amendments on timing or to require the government to report back to lawmakers.
HARD OR SOFT BREXIT
Concern is growing among some in parliament and in business that May will go for a “hard Brexit”, with Britain leaving the EU’s single market and imposing tight immigration controls, damaging trade and investment.
Sterling has fallen to 31-year lows since May announced the date she intended to trigger Article 50, and the court case is being closely watched by market players who believe that if there is a vote in parliament, the greater the chance there is of a “soft Brexit” or delays to the process.
May has accused those behind the action, some of whom openly admit they did not want Britain to leave the EU, of trying to subvert the referendum result.
The claimants reject this, saying they do not want to hinder or hijack the process but merely bring legal certainty and proper democratic scrutiny.
“I don’t see how a court case can block Brexit,” Miller, told Reuters last week. “I am saying we have parliament, scrutiny and then a vote rather than an antiquated power which is secretive and bypasses parliament.”