May won’t use strongest legal argument in Article 50 case

by Hugo Dixon | 13.10.2016

The government probably won’t be using its strongest counter-argument in the legal battle over whether it has the authority to trigger Article 50 that starts in the high court today. This is because the argument is legally smart but politically toxic.

Theresa May’s main argument is that she can use the royal prerogative to invoke Article 50. The principal claimant, Gina Miller, argues the prime minister doesn’t have the authority to do this because triggering the clause will lead to us leaving the EU and, in doing so, remove people’s rights. Only parliament, she says, has the authority to take away people’s rights.

The government could, in theory, hit back by saying that invoking Article 50 isn’t tantamount to quitting the EU because we could change our minds. But it hasn’t yet done this. Nor does it seem likely to – for two reasons.

First, admitting that we might be able to change our minds after triggering Article 50 would set a cat among the Brexiter pigeons. It would raise fears that May might herself change her mind. Such a U-turn would seem more likely if the possibility had already been flagged.

Second, saying that invoking Article 50 might not automatically lead to Brexit would invite further legal challenges because opinion on the matter is divided. Alan Dashwood, a former director in the legal service of the Council of the European Union, wrote in InFacts that the matter would ultimately be determined politically. Jean-Claude Piris, a former director-general of the same service, argued in the FT that “there is no legal obstacle to the UK changing its mind”.

On the other hand, The House of Lords Select Committee on the Constitution concluded in September that: “It is unclear whether a notification under Article 50, once made, could be unilaterally withdrawn without the consent of other EU member states.”

Any reliance in today’s court case on the fact that it might be possible to revoke an Article 50 notification would therefore invite a further challenge – this time to the European Court of Justice. After all, it would be up to it – not our courts – to determine the meaning of this rather imprecise clause. And such a challenge would delay May’s plans to trigger the clause by the end of March next year.

Given that the government seems unlikely to use this argument, it will be interesting to see what other arguments it has up its sleeve.

Hugo Dixon is co-founder of CommonGround as well as editor-in-chief of InFacts. You can sign up as a supporter here.

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5 Responses to “May won’t use strongest legal argument in Article 50 case”

  • Whatever type of Brexit there is and whatever deals are made, ‘British’ reputation is shot to pieces.
    Ridiculous and incompetent would be a polite description.

  • I have been assuming that on the Remain side people have also been keeping quiet about this possibility – which has nevertheless been clearly indicated – because of an inverse calculation: the reversibility of an A50 notification might be taken to imply that an A50 notification has no necessary effect on statutory rights. This argument might undermine the case which is now being heard in the High Court. requiring parliamentary legislative permission for A50 notification. The possibility that A50 negotiations could end in a UK decision to Remain after all is one that the Brexit ministers are of course now desperate to exclude, either politically or legally. This is linked to their other dogma that there is only one possible model of Brexit. Their problem is that once versions of Brexit are evaluated, there is the risk that even the least worst could be evaluated as significantly worse than Remain.

    It seems to be the view of experts that only the ECJ can resolve the question of whether and under what conditions A50 notification is reversible. The House of Lords committee concluded that if in doubt one must assume on grounds of prudence that it is not. The Supreme Court may indeed as you suggest now ask the ECJ for its decision on this before it rules on Parliamentary approval. An ECJ decision either way might have significant consequences.

    • Actually, that doesn’t follow. Invoking article 50 in and of itself, with no corrective action, will cause the revival of British citizens rights. The argument that it can be revoked is not relevant because that is a distinct and separate action which isn’t known to be absolutely possible and might not be taken.

      It’s like suggesting that driving your car at people is I’ll because you can hit the breaks.

    • If one reads the transcripts of the case, this point is addressed by Ms Mountfield QC and Lord Thomas from page 190 onwards. His Lordship explicitly draws attention to the point that a reversible Article 50 process would end the claimants’ case because the notification itself would not be the action which would cause the loss of statutory rights.

      As it stands, both sides are agreement, albeit for different reasons, that A50 is a one-way process. Of course, Donald Tusk’s recent comments imply otherwise, but that seems legally irrelevant to the case at hand (and one supposes that if another case were to lead to a decision one way or the other, that might be grounds to have whatever decision Their Lordships make overturned)

      Based on LCJ comments towards the end of proceedings, expect more on this point when the case resumes on Monday.