Until now, Brexit-related legal challenges have been brought by Remainers, apparently hoping to find legal means of slowing down or stopping Britain’s departure from the EU.
Gina Miller’s crack legal team persuaded the Supreme Court in 2017 that sending the Article 50 notification to Brussels could only be authorised by an Act of Parliament. And more recently, lawyers for Andy Wightman (a Green Party representative in the Scottish Parliament) made it all the way to the ECJ, where they received clarification that Britain can revoke its Article 50 notification unilaterally, thereby cancelling Brexit. These were legal cases brought in part to vindicate fundamental principles of constitutional law, but primarily to achieve political objectives.
Soon, however, we are likely to see Brexiteers marching through the doors of the Royal Courts of Justice, brandishing papers to apply for judicial review. They will be bringing legal cases, but with very different political objectives to their Remainer predecessors. What Brexiteers have on their side is the remorseless ticking of the Brexit clock. If March 29 arrives without either a deal, an extension agreed by the EU, or an outright revocation of the Article 50 notification, Britain will crash out without a deal by automatic operation of law. And to ensure that there is no agreement, delay or revocation, Brexiteers have a variety of legal challenges at their disposal.
To begin with, Brexiteers are in a much stronger legal position than is commonly assumed. To achieve a negotiated Brexit by 29 March, the government must, first, win a meaningful vote on the Withdrawal Agreement in the House of Commons and, second, pass legislation to implement the Withdrawal Agreement.
These are two extremely difficult hurdles. Everyone who has not spent the last three months under a rock knows about Theresa May's difficulty in winning the meaningful vote. The so-called 'WAIB', the Withdrawal Agreement Implementation Bill, which puts her agreement into law, has received far less attention. If and when it is published (and, in fact, it is a constitutional outrage that the draft has not already been provided for pre-legislative scrutiny) it will dominate the Brexit discussion.
The WAIB will be legislation of great legal and constitutional significance and novelty, which will provide for the payment of the 'divorce bill', the entrenchment of EU citizens’ rights, the supremacy of EU law during the 'transition period' and the continuing jurisdiction of the ECJ. Britain cannot leave the EU with a deal until this complex legislation has received Royal Assent, and by preventing it from becoming law, Brexiteers can achieve a no-deal Brexit.
Even if parliamentary guerrilla warfare is unavailing and the WAIB somehow gets through both Houses of Parliament, Brexiteers could plausibly challenge the legality of the Withdrawal Agreement itself. Indeed, Lord Trimble has already indicated that he will initiate judicial review proceedings against the government, arguing that the backstop is inconsistent with the Good Friday Agreement, as enshrined in the Northern Ireland Act 1998. He might go further and argue that the backstop itself cannot lawfully be part of the Withdrawal Agreement. Whereas the Article 50 legislation deals with the UK’s divorce, the backstop looks forward to the future relationship, which will be negotiated on a different legal basis
Given the daunting parliamentary arithmetic, and the stark reality that the government must win the meaningful vote and cobble together enough ayes for the WAIB, it is unsurprising that ministers have begun to float the idea of an extension to the Article 50 negotiating period, delaying Brexit beyond 29 March.
An extension is hardly guaranteed, as the remaining EU member states must unanimously agree to any UK request. But Brexiteers could argue that the government does not even have the power – as a matter of UK law – to make the request in the first place.
The Withdrawal Act 2018, which passed in June 2018, set 29 March as Brexit day. Although ministers have the power to change this definition of 'Brexit day', there is a plausible argument that they cannot do so to create extra time to renegotiate with the EU. A team of top QCs would surely be able to demonstrate an 'arguable case' for judicial review proceedings, the effect of which would be to paralyse the government into inaction pending the outcome of the court case.
In desperation, the government might try to revoke the Article 50 notification, fearful of hurtling unprepared over the metaphorical cliff edge on March 29. Here though they would run into the argument that, as only an Act of Parliament could authorise sending the Article 50 notification, parliamentary authorisation would be required for revocation. Moreover, it is arguable that revocation is inconsistent with the Withdrawal Act.
Government lawyers will, of course, have powerful ripostes to all of these arguments. In a sense, however, that is not the point. Brexiteers will hope that their legal challenges simply freeze the machinery of government long enough to effect a no-deal Brexit by automatic operation of law on March 29.
Unless there is a radical change of course between now and the end of the month, the courts are likely to be sucked into a political maelstrom by waves of Brexiteer litigation, as the Brexit clock continues to tick. It is difficult to see how the British judiciary can emerge unscarred from what will almost certainly be a period of sustained political and legal turbulence.
Paul Daly is a Senior Lecturer in Public Law, University of Cambridge