Thread by @pauldalyesq

Brexit court cases have so far been taken by remainers (Wightman, Miller).

Next month, it is likely to be the turn of the Brexiteers.

Unless something changes soon, the government's brinksmanship risks thrusting the courts into a political maelstrom.

Buckle up.

THREAD

We have already seen the first signs of Hard Brexiteers trying to use the higher institutions of government to achieve their aim: a No-Deal Brexit by automatic operation of law on March 29.

That was the goal of Gerard Batten (UKIP) in asking the Queen to prorogue Parliament.

Batten's request for royal intervention is Sunday league stuff.

But the Brexiteer court challenges are not. There is some Premiership legal talent on the Brexiteer bench.

The court cases might not be successful, but they will be plausible and they will be very high profile

In ascending order of arguability, the Brexiteers can:

1. (in the unlikely event that the Withdrawal Agreement is ratified next month) argue that Article 50 is not the proper legal basis for the Withdrawal Agreement

2. (if the government seeks a delay) argue that the government has no power to seek a delay for further negotiation

3. (if the government decides to revoke A50 at the last minute) argue that the government has no power to revoke

1. A50 is about the divorce, not the future relationship. But the backstop is about both: it takes account of pre-existing commitments (the Good Friday Agreement) but puts legal mechanisms in place to avoid a hard border in the future. The backstop looks back, but also forward

So the argument would be (and the Court of Justice might be asked -- by Brexiteers, as is still their right -- to weigh in) that A50 is not the proper legal basis for the backstop.

That the backstop would have to be negotiated on another legal basis (e.g. A218).

I don't think this is a strong argument. The backstop designed to be temporary but indefinite ("unless and until"), not permanent.

However, there is certainly an argument to be made.

Indeed, my working assumption (until the WA hit the rocks in December, where it continues to founder) was that MEPs would refer this issue to the Court of Justice before ratifying the Agreement.

With time now so short, they will not. But I think some Brexiteer somewhere will.

2. What will happen if, as now seems very likely, the government wants to ask for an extension to A50?

Of course, the EU need to agree, unanimously, to any such request.

But can the government even have the power to ask under UK law?

Brexiteers will argue it does not.

Here the argument will be that the Withdrawal Act eliminates the government's prerogative power (in respect of foreign affairs) to ask for an extension.

They will argue that the Act is a complete code relating to the execution of Brexit leaving nothing over to the prerogative

It is true that the government has the power under the Withdrawal Act to delay "Brexit Day".

Trade secret: as long as the EU plays along, Brexit Day does not necessarily have to be March 29. In fact, critical parts of the Withdrawal Act have still not been brought into force!

But the Brexiteer argument will be that the power to delay can only be exercised when there is a Withdrawal Agreement in place.

You see, an A50 Withdrawal Agreement can provide for *a different date* to March 29.

If so, of course "Brexit Day" would have to be delayed.

Brexiteers will argue that these are the only circumstances in which the government can request an extension.

An extension because "we need more time" would, on this argument, be inconsistent with the Withdrawal Act and, thus, not within the government's prerogative powers.

I do not expect this argument would ultimately be successful.

But it strikes me at least as arguable.

Few barristers would be embarrassed to stand up in court and make this argument.

(Remainers have asked them to make much weaker arguments)

Indeed, the point is not so much whether the argument succeeds or not.

The problem is that if the government asked for an extension at the last possible moment, the courts would immediately find themselves in the harsh glare of the political spotlight.

With the clock ticking down, expectations of a hard Brexit and fears of shortages and stockpiling mounting, the political environment is likely to be extremely fraught.

Judges will be asked to deal with complex matters of constitutional law against extremely tight deadlines.

British judges are very capable. They can work at high speed.

But they may have to make decisions without giving fully reasoned decisions.

They might have to say "Brexit is delayed, with our reasons to follow"

Or require delays when there is little time to waste or wait

How will people react, full of expectation and fear depending on their view of Brexit?

I think we got a sense of the likely media reaction, during the Miller case.

"Enemies of the People!"

Next month, the situation will be even more fraught.

3. There's a very strong argument that the government cannot revoke the A50 notification without an Act of Parliament.

The argument would be that revoking A50 would be inconsistent with the Withdrawal Act

It would frustrate Parliament's very intention in legislating for Brexit

Revoking A50 might also be inconsistent with the EU (Notification of Withdrawal Act) 2017.

On one reading, this legislation provides for a one-way ticket to Brexit, with no return possible.

There are plausible arguments on the other side too, but I think there is a high probability that the courts would say the government cannot revoke A50 on its own.

Try to imagine this scenario.

It involves a government trying to revoke A50 in late March -- maybe because it can't agree the terms of an extension with the EU, or because the courts have said it can't ask for an extension.

Scenes of chaos outside the Royal Courts of Justice and then the Supreme Court, as the case rocketed up the judicial system.

And the judges would either (a) facilitate a No Deal Brexit or (b) cancel Brexit at the eleventh hour.

It is the very definition of a lose-lose scenario.

Again it is not so much about who wins or loses as about the systemic consequences of leaving critical political decisions to the eleventh hour.

There is still time for the government or Parliament to change course. But the current brinksmanship carries grave risks.

ENDS.