Brexit court case latest: the government’s defence

We’re less than two weeks from the start of the government’s appeal of the Brexit court case at the Supreme Court. Both parties (the government on one side, Gina Miller, Dos Santos & The People’s Challenge on the other) will publish their skeleton arguments before the case begins. The government have now made theirs available to the public.

Article 50 is irrevocable

After the High Court ruling in favour of the claimants (Miller, Santos & The People’s Challenge), it was suggested that the government could argue that Article 50 could actually be revoked once triggered. However, in the government’s recently released argument ahead of the Supreme Court hearing, it maintains that an Article 50 notification could not be withdrawn.

The Referendum was not binding

In the government’s case, it also no longer claims that the Referendum was binding. Neither does it claim that the Referendum gives the government new powers.

European Communities Act 1972 & the Royal Prerogative

The People’s Challenge have made an initial analysis of the government’s case. They believe that a key argument to the government’s case is that the European Communities Act is the ‘conduit’ by which EU citizenship rights are enshrined into British law. The Act itself does not give British citizens those rights. The government further argues that Parliament intended for government to use the Royal Prerogative to negotiate and reach agreements with other countries in the EU when the European Communities Act was legislated. And that this is the case for other similar international treaties.

This is from a case update from The People’s Challenge on the government’s case:

Most significantly, an argument only raised briefly in the Divisional Court – that EU Citizenship rights are similar to those agreed at an international level in ‘double taxation’ treaties – is now front and centre.

The Government argues the European Communities Act 1972 is an ‘ambulatory’ or ‘conduit’ Act of this kind.

It says that, when the 1972 Act was passed, Parliament must have intended ministers could use the Royal Prerogative to negotiate and reach agreements with other European states that would grant rights to UK nationals – or strip them away altogether – without further Parliamentary authority or control and that section 2(1) of the Act would be the ‘conduit’ through which they became part of UK law, or were removed from it.”

You can read the government’s case for the Supreme Court here.

Proceedings for the court case at the Supreme Court will start on 5 December. In addition to hearing from the government and the claimants, the court will also hear from those granted permission to intervene. They include the Scottish and Welsh governments, the ‘Expat Interveners’ and the Independent Workers Union of Great Britain. The Northern Irish government will also be heard on devolution issues.


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