Supreme Court Brexit Ruling Unlikely to End May’s Legal Battles

  • U.K. Supreme Court to rule Tuesday on Article 50 lawsuit
  • Dozens of legal challenges still could be made whatever result

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The U.K. Supreme Court’s ruling on Tuesday over who has the power to trigger Brexit isn’t the end of the legal challenges facing Theresa May, and might not even be the end of the beginning.

As the government readies for a possible defeat in the argument on whether the prime minister or Parliament can start the withdrawal from the European Union, at least three more court cases are looming.

At stake this week is how easy May will find it to implement Article 50 of the Lisbon treaty to start the exit. A win for the prime minister would let her trigger Brexit unilaterally, while defeat could force the government to pass legislation that can be amended by opponents looking to water down her proposals.

But even Tuesday isn’t the conclusion: A Dublin court is being asked if the two-year exit process can be terminated at a later date, while two campaigners filed a lawsuit claiming the June vote didn’t give May the authority to pull Britain from the European single market.

The Supreme Court decision “is not by definition the end of the road for Brexit legal challenges," said Charles Brasted, a London-based public law specialist at Hogan Lovells. Judges only have the power to "deal with the dispute that’s before them and they can’t go wider and deal with hypotheticals."

First up is the decision of the 11 judges of the Supreme Court on May’s appeal of a November ruling by the High Court, which said that May needed the blessing of lawmakers.

Legislate

"Almost everybody I speak to except the government’s lawyers expect the government to lose," said Alan Boyle, a professor of public international law at the University of Edinburgh. "It means that essentially they would have to legislate, they’d have to go back to Parliament with a very short piece of legislation."

Read more: Why Brexit is a work in progress six months later - a Q&A

While the opposition Labour Party and even critics within May’s Conservative Party say they won’t seek to oppose the will of the people by attempting to derail the split with the EU, legislation could give them an opportunity to soften May’s plan for a so-called hard Brexit.

Representatives of the devolved governments of Northern Ireland, Scotland and Wales made submissions during the Supreme Court hearings, making the case that they should be consulted before May triggers Article 50.

More legal challenges are pending. Since the Supreme Court began sitting, three other claims have been announced, if not filed, making discrete points about how the U.K.’s exit be treated.

Article 127

The "Article 127 Campaign" spearheaded by single market advocates Peter Wilding and Adrian Yalland, who took opposing sides in the referendum, are seeking a ruling that 2016’s EU vote didn’t cover membership of the single market. The first High Court hearing is scheduled for Feb. 3, according to Yalland.

"May is talking nonsense when she says that we all knew we were voting to leave the single market," Yalland said. "That is post truth politics: she is trying to reinvent history."

But claims that the EU vote didn’t cover membership of the single market, or the European Economic Area, may have some difficulty "getting off the ground,” according to Brasted.

"That requires as a starting point that our membership of EEA is separate and capable of persisting once we withdraw from the EU, so that’s a question of EU law and is a hurdle to get over to even start having the argument," he said.

Reversing Course

Separate legal proceedings in Dublin are seeking clarity on another point. A tax lawyer involved in the Article 50 suit has successfully fundraised over 70,000 pounds ($86,000) to mount a legal challenge over whether the treaty can be revoked once triggered without the consent of the other 27 EU member states.

Jo Maugham’s Dublin lawyers sent a letter before action Jan. 13, asking the Irish High Court to refer the question to the EU Court of Justice. That could take the best part of a year to resolve.

During the hearings both sides agreed that its implementation can’t be withdrawn, but many international lawyers disagree, according to Boyle.

"The EU treaty is to promote further union, so are you promoting further union by demanding that if you trigger Article 50 you’re inexorably, irrevocably leaving the union?" he said. "No, the European Court of Justice could well say yes. Of all the legal possibilities I think that might be the one that somebody tries."

Take Control

The irony then would be that Europe’s highest court would rule over the U.K. just as the country is seeking to escape its jurisdiction. “We will take back control of our laws,” May said Jan. 17.

Luxembourg’s ECJ isn’t the only court that could be dragged into the arguments. Attempts to compel EU citizens to leave the U.K. may breach the EU Charter of Fundamental Rights and the European Convention on Human Rights, which would mean the the ECHR in Strasbourg need to make a ruling, according to a Jan. 9 paper by researchers at University College London.

Depending how the government handles the exit process, the legal challenges won’t stop there either. If May decides to use ancient powers to remove a whole cadre of rights, there could be suits covering a diverse range of issues ranging from common law and human rights to property, residency, family and employment rights, according to Jeff King, law professor at University College London.

"Whether these challenges will succeed depends on the measures the government uses," King said. "I doubt any of them would stop or even greatly slow down Brexit, but they might make the process more humane, even if at the cost of being a thorn in the government’s side."

Still, should the government lose, it’s likely May will try to head off the plethora of legal challenges by using a bill so carefully drafted it can’t be used as a candidate for further legal challenges, Boyle said.

Judicial Politics

"If you leave the EU you leave everything, so simply stick in a clause that its effective for all purposes," Boyle said. "Any half-wit legal adviser will deal with the EU, EEA and any other institution we wish to be leaving."

Despite all this May can take some solace that the Supreme Court is likely to stop well short of dictating how she manages the process beyond stating she must introduce legislation. British judges have sought to keep out of politics for centuries.

"One of really key constitutional sensitivities in all of this is the very fact that the Supreme Court is commenting at all on parliamentary procedure when they are two separate jurisdictions," Brasted said. Any attempt to influence "what will follow beyond that is extremely unlikely."

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