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.