The need for Parliament to give its approval before the Brexit process starts is of huge “constitutional importance”, the High Court has heard.
QC Lord Pannick said the case “raises an issue… concerning the limits of the power of the Executive”.
The High Court is considering whether ministers can invoke Article 50 of the Lisbon Treaty, the trigger for formal talk, without MPs passing a new law.
Lord Pannick said the case was not concerned with the “political wisdom” of the country withdrawing from the EU and it was wrong to suggest that the legal challenge was “merely camouflage” for those who wanted to remain.
Ms Miller was entitled to say that “if we are to leave the EU then the steps to be taken which will deprive her of her rights under the 1972 Act, and other legislation, must be done in a lawful manner”.
He said she accepted that her challenge could only succeed “if we can satisfy the court that the defendant has no power to notify under royal prerogative powers”.
Lord Pannick argued that she sovereignty of Parliament meant that what Parliament did “is entirely a matter for Parliament”.
The government, represented by Attorney General Jeremy Wright, will argue it is giving effect to the will of the people provided for in the 2015 EU Referendum Act authorising the poll and that was “clearly understood” before June’s vote.
According to documents published this summer, ministers believe the use of prerogative powers once held by the Sovereign but now residing in the executive to enact the referendum result is “constitutionally proper and consistent with domestic law”.
For the courts to require Parliament to pass legislation to implement the outcome of the referendum would be an “impermissible” intrusion on its proceedings.
“The decision to withdraw from the EU is not justiciable,” they stated. “It is a matter of the highest policy reserved to the Crown.”
The losing side in the case is likely to launch an appeal. It has already been announced that any appeal will be fast-tracked to the Supreme Court to ensure a final judgement before the end of the year.
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