Brexit faces potential court challenge over 'technical flaw' in way Article 50 was triggered

There could be a “technical flaw” in the way Article 50 was triggered which could make it vulnerable to a challenge in court, the National Assembly for Wales has been told.

In a plenary session, Baroness Eluned Morgan, the shadow minister for Wales in the House of Lords, said that the European Union (Notification of Withdrawl) Act did not actually notify the EU of the UK's decision to leave the union.

Following the passage of the act in Parliament, Theresa May sent a letter to European Council President Donald Tusk telling him of the UK's intention to leave, which is widely believed to have triggered Article 50.

But lawyers have pointed out that even if Parliament voted to trigger Article 50 and start the exit process, the wording of the Act did not have the desired effect.

The court case brought by philanthropist Gina Miller established that the referendum was not in itself a constitutional decision to leave the EU and that Parliament would have to vote on the matter.

And, writing in Counsel Magazine, lawyer David Wolchover described the triggering of Article 50 as "an illusion" with no legal basis.

Baroness Morgan asked the Welsh Finance Secretary, Mark Drakeford, if he agreed "that the Act which triggered the Brexit process could have a technical flaw in it".

"In that whilst the Act authorises the Prime Minister to notify the EU that we intend to leave, it does not, as it is written, indicate that we should leave.

“I understand that coming from an EU enthusiast like me that is going to sound like a ruse for stopping us to leave the EU but it is not. It’s a genuine question of whether the act as it is drafted could be challenged in court.”

She also asked Mr Drakeford whether he would be prepared to seek clarification from the Government's legal experts.

Responding to the question, Mr Drakeford said he was aware of the "potential technical flaw" and that some of the UK's most senior lawyers also shared that view.

He said: “I am aware of the point that she makes about this potential technical flaw in Article 50 legislation.

“There are a group of lawyers, there is one in my constituency, who has argued very much so that there is a technical problem with the Act of Parliament that was passed by the UK.

“I know that they have taken this view to the [European] Commission and I know that it is shared by some very senior previous Law Lords for example.

“We will make sure that we get a view from Welsh Government lawyers."

However he said he wondered if people talking about the possible error in the Act were "mistaking the law for the politics of this matter".

"Even if there is a technical flaw in the way the Act may have been put together whether the political majority that was in favour of the purpose of that Act will not in the end be found to be more significant," Mr Drakeford said.

Under Article 50 of the Lisbon Treaty, member states wishing to leave the EU must do so in accordance with their relevant constitutional requirements.