Cavaliers and Roundheads: four thoughts about the Article 50 litigation

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11th July 2016

There are three potential cases against the government on Article 50, demanding that the ultimate decision on Brexit be made by parliament and not the prime minister under the royal prerogative.

Two of these cases (the Mishcon de Reya and Dos Santos cases) are described in my post here, and the third (the Bindmans case) is set out at Jolyon Maugham’s blog – including a detailed letter which should be read in full.

Of the three:

– the Mishcon de Reya case is the most well-known (thanks to a savvy press release);

– the Dos Santos case the one most progressed (with a claim form and a date of 19 July 2016 for a preliminary hearing), and

– the Bindmans case the one where most information is in the public domain.

It is disappointing that in such potentially far-reaching public interest cases, there is so far little information in public domain on two of the potential claims.

That said, there are perhaps four general points worth making.

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First: the government will not want to litigate these cases.

This is for two reasons.

One is obvious: the government will not want to lose a case on this particular issue.

The other is more subtle: the royal prerogative is a valuable tool for the executive.  The fiction is that it is exercised on behalf of the crown by her majesty’s ministers. The reality is that it gives ministers legal powers without any visible means of legal support.

The possibility of having an adverse decision on the scope of the royal prerogative will make government lawyers highly nervous – especially with, say, David Pannick (the barrister on the Mischcon de Reya case) on the other side. Who knows what the High Court, the Court of Appeal, the Supreme Court could rule… (government lawyers would be shuddering at this point).

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Which leads us to the second thought: these cases may not get to trial.

In two of the case, this is a trite observation: there does not even seem to be a formal “letter before action,” let alone an actual claim.

But the government really will not want these claims to progress, and so the government will want to get rid of them if they can.  This may be by successfully opposing the claims at the preliminary permission stage – or it may be that the government offers an apparent concession, such as a promise that there will be a parliamentary vote before an Article 50 notification – formally distinct but effectively connected.  I deal more with this possibility at my FT post today.

What I think the government may say that there will be a vote to repeal (or amend) the relevant EU legislation, but any repeal (or amendment) will then be suspended pending the outcome of the Brexit process.  If the vote is lost, however, the Article 50 notification cannot proceed.  It would be giving the Article 50 decision to parliament in all but legal form, whilst preserving the precious royal prerogative.

If faced with such a concession, the courts may be minded to leave the case alone.

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Which brings us to the third thought: the courts will not be eager to decide this case.

This is not because the case lacks inherent interest: members of the legal profession have been considering these questions since law school, and the respective powers of the crown and parliament was probably the first topic they wrote an essay on.  Judges would love to discuss this case in a seminar or at their bench table.

But they will not want to decide this one in court unless they have to.  This is for two reasons.

First, it is ultimately a political question which should be resolved by parliament. It may well be that the question can be framed in a legal(istic) way about the correct construction of Article 50 and what “constitutional requirements” are or are not. But the judges will not want to be dragged in easily into a political dispute about the outcome of a popular referendum.

Second, the remedies sought in these cases appear to be “discretionary” remedies – such as declarations or injunctions.   A discretionary remedy – unlike the award of damages in a contract or tort claim – is not something a claimant can demand as of right. Even if a claimant can make out their case, the court can still decline to grant the remedy if it serves no useful purpose or is futile.

So even if the case is heard, it is not certain the court will then do anything.

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Which leads to the final point: there is no clear legal outcome to the claims.

Nobody knows for certain what the courts would decide, even if the courts are minded to hear the case and grant a remedy.

Views differ. On the “parliamentarian” side you have Pannick and other distinguished constitutional lawyers, and on the (forgive me) “cavalier” side you have Professor Mark Elliott, perhaps the UK’s leading public law academic and others. These people disagree fundamentally and in good faith (and in good humour).

It is not a “given” that the parliamentarians will win, even with crowd-funding and so on.  The fact that government lawyers will want to head off the claim can be explained by prudence and not resignation.

(For what it is worth, I think both the parliamentarians and cavaliers are correct, and Article 50(1) is wide enough to cover both the exercise of the prerogative and a parliamentary Act as a decision).

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So in summary: you have cases the government wants to close down, cases which the courts will hear and decide only if they have to, cases which may not lead to any decision or remedy, and cases where it cannot be predicted which side is most likely to win.

Whatever happens will, however, be fascinating for anyone interested in law and policy.

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