Brexit legal challenge: A look at the government’s skeleton argument

I’m gobsmacked

I love Article 50 — it’s like the string between the kid’s tooth and the door.

It is a behemoth of a legal conundrum which is so complicated due to the simplicity of its drafting, which has simply welted in the spotlight it never hoped to be under. The author of the clause, Giuliano Amato, said himself:

[It] is like having a fire extinguisher that should never have to be used. Instead, the fire happened.

Now we’re frantically trying to read the instructions on the back of it, while the blaze singes our eyebrows.

Such is my love of Article 50, I was keen to write another Legal Cheek article on it, if only to hear the constructive legal criticisms from my learned friends who write in the comment sections beneath.

That all aside, it’s back to the Article 50 grindstone I go. And yet more legal riddles splutter out of the enigma that is the drafting of Article 50 as we finally have access to the government’s skeleton, just before the London High Court case kicks off with abandon on 13 October.

Here are a few things of note about the government’s skeleton argument.

Article 50(1) and Article 50(2) — conflation for the nation

The government begins their skeleton by stating that they have promised to respect the result of the referendum, immediately implying that the action of the claimant (Miller/Mishcon et al) is an attempt to avoid the consequences of the referendum. However Gina Miller’s case seeks nothing of the sort, and is instead a challenge about the process of Brexit not Brexit itself, but it’s clear that this is not something the government’s case will acknowledge.

The government then makes a very interesting point. It argues the claimants are conflating Article 50(1) and Article 50(2):

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

And all of a sudden one word drafted in among it all begins to moon me from across the bay: “decide”.

Article 50(1) says the decision to leave must be according to the United Kingdom’s constitutional requirements. Article 50(2) talks about notifying the European Union once this decision is made.

All of a sudden the distinction between “decision” and “notification” is crucial; all of a sudden, the definition of “decision” becomes an issue of huge constitutional law significance. This a complete blindsiding of the already complicated constitutional law issues involved — my understanding is what “decision” means and the moment when a “decision” has been made is not something that has reached a court room — “agreement”, yes; “capacity to make decisions”, yet; but decisions alone, no.

The government is arguing that the decision has now been made — that was the referendum — and all that’s left is the notification, which is a simple administrative action taken on the international plane, easily done by royal prerogative alone.

I like this. I like this argument a lot, for the mere fact that it has pulled “decision”, a word which has spent centuries of jurisprudence standing idly on the side-lines, into the fray to the fought over.

However I would argue that the decision is yet to occur.

In the vacuum of legal cases on it, I would argue that to be a ‘decision, it must be definitive; it must be binding; it must be the end of the decision-making process. Each voter came to a decision to cast how they did but that does not equate to the state having made its decision as of yet — it is entirely possible, legally, for parliament to decide to not leave the EU. In the same way an e-petition can’t change how Cincinnati zoo operates (yes I did just make a Harambe reference in an article about Article 50), an unbinding referendum does not make a decision on the international plane, at state-level, in the UK.

How can an unbinding referendum possibly qualify as such a decision? In a parliamentary democracy, a decision could only be conclusively made once that unbinding referendum is made binding. This must be done according to the country’s constitutional requirements. I don’t think we’re at the notification stage at all yet — the decision, under Article50 (1), has still not been made.

Forgetting about forgetting to write the constitution down

Another incredible part of the government’s argument is that it seems to ignore the slightly important fact that we have an uncodified constitution in the UK. Bizarrely, the government dedicates a whole paragraph to saying the claimants are “ambiguous” about whether the royal prerogative being used to invoke Article 50 breaches Article 50 itself. The defendant came to this conclusion after noting that the claimants rely “upon a purely common law argument that the prerogative cannot be exercised” after stating that the government’s proposed action would not be in accordance with the UK’s constitutional requirements. Baffled, the government’s lawyers say that this means they don’t even state how Article 50 is being breached, but instead start talking some drivel about the common law.

This I find extraordinary.

These are the Queen’s Counsel writing the skeleton argument for what must be one of the most impactful cases for a decade, and yet they missed that the UK doesn’t have a codified constitution.

If your argument is that invoking Article 50 must be made according to our constitutional requirements, then your next step is setting out what those requirements are. The only way to set out what the requirements are is by reference to the common law, so what on earth are the government lawyers talking about?

You breach Article 50 if you don’t act in accordance with the UK’s constitutional requirements. These are only found in the common law. Such a requirement found in this common law is that royal prerogative cannot clash with statute. If you breach this rule, therefore, you have breached Article 50. Simples.

The binding nature of an unbinding referendum

Additionally, lawyers for the defendant have claimed “there is no legal basis” for the government to refuse the EU referendum.

This is absurd: there is no legal basis for the government to be forced to accept the referendum; it was a non-binding referendum.

I’m gobsmacked at this. I also find it funny that they, in this paragraph, describe the events of 23 June as a “statutory referendum”, as if the judges will be confused and will equate the fact the referendum occurring was underpinned by statute with its result being legally binding.

Unclear clarity

The government continue that the 2015 act made “clear” the government would trigger Article 50 itself, without recourse to parliament.

This is a frightening rewriting of history. And what is their example, and seemingly only example, of this clarity?

Statement from the House of Lords Hansard, on 23 November 2015, by a Minster of State, Foreign and Commonwealth Office Baroness Anelay:

As the Prime Minister has made very clear, if the British people vote to leave, then we will leave. Should that happen, the government would need to enter into the processes provided for under our international obligations, including those under Article 50.

And that is about as clear as Waitrose essential range is essential. God love the junior lawyers who spent unceasing days and nights, trawling through Hansard, to find that enviable nugget of crystal clear clarity.

“Weak verging on the absurd”

“Weak verging on the absurd” are strong words.

These are the word of Mark Elliott, one of the foremost constitutional lawyers of the UK, who supports the use of royal prerogative in law (but not principle) in this instance. That is his description of the government’s Article 50 skeleton.

It is worth reading his entire article but one aspect of the skeleton which gets a particular shellacking by Elliott is the government’s suggestion that declaratory relief, which would be the product of the claimants’ potential victory in this judicial review case, would see the court “trespassing on proceedings in parliament”. Elliott describes this as “nothing short of absurd”, an argument that “collapses under the slightest scrutiny”. His point is that in no way would the declaratory relief require parliament to legislate — it’s just a likely outcome.

Conclusion

Overall, the calibre of this skeleton and the nature of the arguments being put forward by the government are incredibly concerning.

As Elliott argues, the core of the case is strong, but for some unspeakable reason the “core case [is] so heavily obscured by arguments that are not merely peripheral, but weak verging on absurd”. Legal differences are one thing, but the way the defendant is arguing its case has a strong undercurrent of bullying, to my mind, which I expect to be put in check by the various claimants and, hopefully, the court themselves.

But we await the case itself this week with bated breath — I haven’t been this excited since I heard Robert Wars was returning.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

You can read the government’s defence here: