Enough with the legal coups against Brexit

A week ago today, the prime minister invoked Article 50. The process of the United Kingdom leaving the European Union, following the EU referendum result last June, had begun. It took nine months to get to this point, but finally it felt like the will of the UK people would be acted upon.

The last nine months have not been easy. There was a major legal challenge to the Brexit process by elite Remainers, and led by Gina Miller. They took a case to the Supreme Court, arguing that Theresa May could not invoke Article 50 without a vote in parliament. The UK government contested, arguing that Article 50 could be invoked using the Royal Prerogative, a set of powers typically used by the prime minster without parliamentary approval. The claimants won that case, and so Theresa May had a vote in parliament. The House of Lords then tried to hold Brexit up by trying to amend the Article 50 bill. Eventually, the bill was passed.

Though the attempts to stop Article 50 being invoked were concerning, what was heartening was that the voice of the people, as expressed at the referendum, was a major presence throughout these battles. The vote stood as a weighty reminder that those in power work for us – the British people. The judges of the Supreme Court felt compelled to acknowledge that the referendum had significant political effect. As the Article 50 bill passed through parliament, MPs knew that the 17.4million people who voted Brexit were breathing down their necks.

But there is still a fight ahead of us. While the invocation of Article 50 represented a significant step towards the enactment of the biggest political mandate in British political history, we haven’t seen it through yet. We still have two years of negotiation ahead of us before the UK can actually leave the EU, and there are still legal challenges to the Brexit process which are yet to be resolved. While the remaining cases do not appear to have the legal merit of the Gina Miller case, they still stand to jeopardise Brexit.

The most prominent of these challenges is known as the Dublin case. This case was launched in Ireland by a UK tax lawyer. While the Gina Miller case at least purported to be seeking to resolve an important question of law (even if the real motivation, derailing Brexit, seemed clear all along), those backing the Dublin case have been explicit about their intentions. The claimant wrote on his blog that, if successful, the case would allow the UK to ‘reject the outcome of Article 50 negotiations and remain in the EU should the Brexit negotiations… yield a deal that was not acceptable to the UK parliament or British voters’.

The case is being brought in Ireland in the hopes it will be referred to the European Court of Justice. It is seeking the Luxembourg court’s advice on a number of points. First, it seeks to establish whether Article 50 is revocable – meaning the government could change its mind about leaving. Second, it wants to establish if invoking Article 50 alone is enough to take the UK out of the Single Market, or whether an additional notice would be required under EU law. Third, it seeks to clarify whether EU states behaved illegally by refusing to commence negotiations with the UK when Theresa May indicated to the European Council that Article 50 would be invoked.

The case is not thought to have much merit. Under relevant law, the claimants in such cases must establish that there is some dispute that needs to be resolved. As it stands, the UK has not tried to withdraw the Article 50 notification. In fact, both the UK and the EU are proceeding on the basis that the notification is irrevocable. There is currently no indication that the UK would withdraw the notification even if a deal was not reached, given that May has stated that ‘no deal would be better than a bad deal’. Without an actual dispute, the claimants may struggle to convince the court that it should intervene.

More importantly, this case is politically unconscionable. It would greatly strengthen the EU’s hand in negotiations, to the end of undermining Brexit. If it were decided that the Article 50 notice was revocable, then the EU would have the greatest possible motivation to offer the UK an unworkable deal. This would give a significant justification to MPs – the majority of whom backed Remain – to argue that it would be better to stay in the EU after all. It would also fuel those calling for a second referendum. They would claim that what is now on the table is significantly different to what was promised by the Leave campaign.

These next two years are going to be tough. There will be difficult decisions to be made about the UK’s future relationship with the EU. This is why these endless legal cases must now stop. Strong negotiations need a degree of certainty. In an environment in which so many aspects of the process are unknown, creating further uncertainty through exploiting legal ambiguity is wrong. Though anyone is free to bring a case, we should condemn those who intend to use this right to sabotage these negotiations and undermine a democratic vote.

Luke Gittos is law editor at spiked and author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. (Buy this book from Amazon(UK).)

Picture by: Getty Images.