Journal

Brexit legal challenge: A look at the government’s skeleton argument

By on
56

I’m gobsmacked

lead1

I love Article 50 — it’s like the string between the kid’s tooth and the door.

It is a behemoth of a legal conundrum which is so complicated due to the simplicity of its drafting, which has simply welted in the spotlight it never hoped to be under. The author of the clause, Giuliano Amato, said himself:

[It] is like having a fire extinguisher that should never have to be used. Instead, the fire happened.

Now we’re frantically trying to read the instructions on the back of it, while the blaze singes our eyebrows.

Such is my love of Article 50, I was keen to write another Legal Cheek article on it, if only to hear the constructive legal criticisms from my learned friends who write in the comment sections beneath.

That all aside, it’s back to the Article 50 grindstone I go. And yet more legal riddles splutter out of the enigma that is the drafting of Article 50 as we finally have access to the government’s skeleton, just before the London High Court case kicks off with abandon on 13 October.

Here are a few things of note about the government’s skeleton argument.

Article 50(1) and Article 50(2) — conflation for the nation

The government begins their skeleton by stating that they have promised to respect the result of the referendum, immediately implying that the action of the claimant (Miller/Mishcon et al) is an attempt to avoid the consequences of the referendum. However Gina Miller’s case seeks nothing of the sort, and is instead a challenge about the process of Brexit not Brexit itself, but it’s clear that this is not something the government’s case will acknowledge.

The government then makes a very interesting point. It argues the claimants are conflating Article 50(1) and Article 50(2):

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

And all of a sudden one word drafted in among it all begins to moon me from across the bay: “decide”.

Article 50(1) says the decision to leave must be according to the United Kingdom’s constitutional requirements. Article 50(2) talks about notifying the European Union once this decision is made.

All of a sudden the distinction between “decision” and “notification” is crucial; all of a sudden, the definition of “decision” becomes an issue of huge constitutional law significance. This a complete blindsiding of the already complicated constitutional law issues involved — my understanding is what “decision” means and the moment when a “decision” has been made is not something that has reached a court room — “agreement”, yes; “capacity to make decisions”, yet; but decisions alone, no.

The government is arguing that the decision has now been made — that was the referendum — and all that’s left is the notification, which is a simple administrative action taken on the international plane, easily done by royal prerogative alone.

I like this. I like this argument a lot, for the mere fact that it has pulled “decision”, a word which has spent centuries of jurisprudence standing idly on the side-lines, into the fray to the fought over.

However I would argue that the decision is yet to occur.

Want to write for the Legal Cheek Journal?

Find out more

In the vacuum of legal cases on it, I would argue that to be a ‘decision, it must be definitive; it must be binding; it must be the end of the decision-making process. Each voter came to a decision to cast how they did but that does not equate to the state having made its decision as of yet — it is entirely possible, legally, for parliament to decide to not leave the EU. In the same way an e-petition can’t change how Cincinnati zoo operates (yes I did just make a Harambe reference in an article about Article 50), an unbinding referendum does not make a decision on the international plane, at state-level, in the UK.

How can an unbinding referendum possibly qualify as such a decision? In a parliamentary democracy, a decision could only be conclusively made once that unbinding referendum is made binding. This must be done according to the country’s constitutional requirements. I don’t think we’re at the notification stage at all yet — the decision, under Article50 (1), has still not been made.

Forgetting about forgetting to write the constitution down

Another incredible part of the government’s argument is that it seems to ignore the slightly important fact that we have an uncodified constitution in the UK. Bizarrely, the government dedicates a whole paragraph to saying the claimants are “ambiguous” about whether the royal prerogative being used to invoke Article 50 breaches Article 50 itself. The defendant came to this conclusion after noting that the claimants rely “upon a purely common law argument that the prerogative cannot be exercised” after stating that the government’s proposed action would not be in accordance with the UK’s constitutional requirements. Baffled, the government’s lawyers say that this means they don’t even state how Article 50 is being breached, but instead start talking some drivel about the common law.

This I find extraordinary.

These are the Queen’s Counsel writing the skeleton argument for what must be one of the most impactful cases for a decade, and yet they missed that the UK doesn’t have a codified constitution.

If your argument is that invoking Article 50 must be made according to our constitutional requirements, then your next step is setting out what those requirements are. The only way to set out what the requirements are is by reference to the common law, so what on earth are the government lawyers talking about?

You breach Article 50 if you don’t act in accordance with the UK’s constitutional requirements. These are only found in the common law. Such a requirement found in this common law is that royal prerogative cannot clash with statute. If you breach this rule, therefore, you have breached Article 50. Simples.

The binding nature of an unbinding referendum

Additionally, lawyers for the defendant have claimed “there is no legal basis” for the government to refuse the EU referendum.

This is absurd: there is no legal basis for the government to be forced to accept the referendum; it was a non-binding referendum.

I’m gobsmacked at this. I also find it funny that they, in this paragraph, describe the events of 23 June as a “statutory referendum”, as if the judges will be confused and will equate the fact the referendum occurring was underpinned by statute with its result being legally binding.

Unclear clarity

The government continue that the 2015 act made “clear” the government would trigger Article 50 itself, without recourse to parliament.

This is a frightening rewriting of history. And what is their example, and seemingly only example, of this clarity?

Statement from the House of Lords Hansard, on 23 November 2015, by a Minster of State, Foreign and Commonwealth Office Baroness Anelay:

As the Prime Minister has made very clear, if the British people vote to leave, then we will leave. Should that happen, the government would need to enter into the processes provided for under our international obligations, including those under Article 50.

And that is about as clear as Waitrose essential range is essential. God love the junior lawyers who spent unceasing days and nights, trawling through Hansard, to find that enviable nugget of crystal clear clarity.

“Weak verging on the absurd”

“Weak verging on the absurd” are strong words.

These are the word of Mark Elliott, one of the foremost constitutional lawyers of the UK, who supports the use of royal prerogative in law (but not principle) in this instance. That is his description of the government’s Article 50 skeleton.

It is worth reading his entire article but one aspect of the skeleton which gets a particular shellacking by Elliott is the government’s suggestion that declaratory relief, which would be the product of the claimants’ potential victory in this judicial review case, would see the court “trespassing on proceedings in parliament”. Elliott describes this as “nothing short of absurd”, an argument that “collapses under the slightest scrutiny”. His point is that in no way would the declaratory relief require parliament to legislate — it’s just a likely outcome.

Conclusion

Overall, the calibre of this skeleton and the nature of the arguments being put forward by the government are incredibly concerning.

As Elliott argues, the core of the case is strong, but for some unspeakable reason the “core case [is] so heavily obscured by arguments that are not merely peripheral, but weak verging on absurd”. Legal differences are one thing, but the way the defendant is arguing its case has a strong undercurrent of bullying, to my mind, which I expect to be put in check by the various claimants and, hopefully, the court themselves.

But we await the case itself this week with bated breath — I haven’t been this excited since I heard Robert Wars was returning.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

You can read the government’s defence here:

Want to write for the Legal Cheek Journal?

Find out more

56 Comments

Anonymous

Here’s Michael’s credentials for this article:-

“Michael Walker is from Kells, Country Antrim. He studied law at Emmanuel College, Cambridge, graduating in June 2014. Since then, he has had a month long IAML studentship in Boston. On returning, and after some time working at a clothes store, he took up a paralegal role in Belfast. On the back of a vacation scheme last March, he was offered a training contract for a London firm and so will be heading off to study his LPC in London. He has also written a few comment pieces for the Independent and DJ under the genius name of DJ WALKman.”

“I’m gobsmacked” – Yes Michael, so are we…. 😐

Practising barrister, 8 years call, top BVC scholarship, LL.B (Hons) with work at various offices, factories, cafes and paper-round.

That amount of personal knowledge and vitriol suggests that you are someone known to the author personally and hold some kind of a grudge. Very mature. Care to share your own credentials?

Anonymous

Hahahaha! For a practising barrister of 8 years call, you seem to lack the nous to click on an authors name and look at their profile. You know, how most websites work?

I therefore just copied and pasted Michael’s profile into a comment…..

Anonymous

You’ve embarrassed yourself there a little bit chum.

OP barrister

In that case, I humbly withdraw the above comment.

Anonymous

Wow. Not many barristers will ever actually admit they got it wrong. Are sure you’re suited to your chosen profession?

Anonymous

@Anonymous

Argumentum ad personam in the purest form.
Shame on you.

Sam

Er ‘n you are the one who has resorted to ad personal.
Having made this mistake you then were foolish enough to tell someone else they had embarrassed them self.

Richard Allen

Good analysis. This whole issue hangs on whether or not Parliament intended the referendum to be the decision on staying in or out of the EU (therefore the triggering of Article 50 is just carrying out that pre-ordained path).

I don’t think that it can be shown the referendum was intended to do that because no mention of it is made in the referendum act and there is nothing in any of the literature that was circulated to the public or even in any Government publication or on any Government website that clarifies anything in relation to this issue. The problem lies with the question that was asked and the fact that the question was not followed with a statement as to what would happen to the answer. In 1975 it was very clear that the Government (the political Government as distinct from the machinery of Govt) would be bound by the result. It said that on the leaflet that was circulated to the public in 1975. Parliament could not be bound by the result and there is a very simple reason for that. We are a representative Parliamentary democracy and we elect MPs who are free to act on our behalf. MPs do not necessarily hold the same views as their constituents and neither are they obligated to hold the same views as their constituents. If constituents do not like the view of their MPs then they can remove them at an election . By way of an extreme example if Screaming Lord Sutch had been elected in 1975 would he have been bound by the referendum on staying in the EU? Clearly he would not have been since he would have been elected to carry out his agenda of painting cats pink, or whatever it may have been. As Mrs Thatcher explained in the referendum debate in 1975 for political reasons MPs might have to agree with the referendum result but that is completely different from being legally bound by it. MPs are free to ignore the referendum and risk losing their seat at the next election. Even if an act specifically bound all members of parliament to a specific result MPs could vote to overturn it.

In short the 2016 referendum was a humongous screw up because – unlike the 1975 referendum – Parliament failed to make sure that the question included clarity on what would happen with the result. Because no clarity was supplied any suggestion that the referendum was intended to be the final word is not supported by any evidence. The question whether Royal prerogative can or cannot be used therefore becomes academic because there has to be some authority for it to be used first i.e a decision. .If Parliament had agreed to be bound by the referendum act then using royal prerogative would be logical because Parliament would have been bound by statute to carry out the result of the referendum. But Parliament never agreed to that. The real question is therefore whether or not in this instance the authority to trigger Article 50 (by Royal Prerogative or whatever else) even exists.

The only proper thing to do is to look to the 1975 referendum and follow what took place there as that is the only relevant precedent. It was an advisory referendum that legally bound the political government (and not Parliament) and it required a free vote in Parliament. In the UK the will of the people is represented in Parliament by elected MPs who act on behalf of their constituents but there is not and cannot be any implied legal obligation to vote one way or another. If so our democratic system would collapse.

This is an essential read …and will make uncomfortable reading for Brexit Tories not least because of Mrs Thatchers eloquent explanation as to why they are wrong…. http://hansard.millbanksystems.com/commons/1975/mar/11/eec-membership-referendum

Truth

And ??? I have employed many barristers. I used a QC once who was supposedly top of his game and he was utterly useless…. judge something on its own merits not on the basis of the fact the writer may or may not have a Blue Peter badge.

Anonymous

James Eadie QC’s relevant experience can be found here:

https://www.blackstonechambers.com/barristers/james-eadie-qc/

Michael Walker’s relevant experience is as follows:-

“Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.”

I’m conscious LC have probably posted this article purely to piss people off and encourage comments; and that I’m clearly falling into the trap. However even by LC’s standards this level of naïve-pretentiousness is breath-taking.

Not Amused

I would advise young people to not produce articles like this. Or if they feel compelled to do so, they should do so anonymously.

Anonymous

This isn’t an academic journal, bud, we all have to start somewhere, and being bold even when youthful is something that the legal professions value.

No anonymous

No they don’t – the profession does not like to ruffle feathers – they measly pick up the mess in the correct environmental bag of sorts and get paid for it – before the bird gets caged.

Sam

His age is irrelevant.
If you are going to resort to ageism you would be better off not saying anything at all.
Behaving like this discredits you not the person you are talking about because it highlights the fact that you don’t have any counter arguments.

Your attempt to discredit the author has failed and backfired

Are you sure?

‘…the UK’s constitutional requirements. These are only found in the common law.’

Anonymous

Indeed, statute springs to mind such as the Acts of Union of 1707 or the Bill of Rights 1689. Or for that matter the still operable four clauses from Magna Carta of 1217. Or the HRA 1998 which is considered “Constitutional” by some. Possibly even the Catholic Relief Act 1829 and other such acts aimed towards religious tolerance.

Interloper

Eh up. Someone’s been revising their Constitutional Law…

Come on, you know what he meant and the words around the highly selective snipping (or should I say sniping) there makes pretty clear what particular “constitutional requirements” were being referred to…

Anonymous

1. No I have not been revising constitutional law as you suggest, I merely remember it. 2. The sentence surrounding the quote make it pretty clear the point he was trying to make is that the Constitutional law is found only in the common law as here “You breach Article 50 if you don’t act in accordance with the UK’s constitutional requirements. These are only found in the common law.” This is patently not true.

Interloper

In relation (specifically – wrt the part you’re referring to !) to how Treaty articles are handled, what is there in statute ? Other than some mealy mouthed stuff in CRGA 2010 about laying before Parliament etc..

Anonymous

He did not say “you breach Article 50 if you don’t act in accordance with the UK’s constitutional requirements. These are only found in the common law…in relation to treaty obligations”. He said “you breach Article 50 if you don’t act in accordance with the UK’s constitutional requirements. These are only found in the common law.” Thus, your question relates to a criticism I have not made on something he did not say. The thing he did say was UK’s Constitutional requirements can only be found in the common law, which is not true, as discussed above.

Gus the Snedger

The Catholic Relief Act sounds pervy!

Parliament Already Decided

On the issue of the decision (Art. 50(1)), we don’t need to dig up any quirky common law rules.

A final decision WAS made by Parliament:

It, as sovereign legislature, passed a law prescribing a particular method to reach its decision (a referendum).

That’s fine. It can do what it likes. Can it go back on that decision? Yes. Must it? No.

If it did, the decision could be no more final than it is now (being incapable of self-entrenchment).

It would just be Parliament’s LATEST decision taken by a more conventional method.

Anonymous

but the referendum was advisory not binding. As such they asked the people to help them decide not to make the decision.

Just Anonymous

“These are the Queen’s Counsel writing the skeleton argument for what must be one of the most impactful cases for a decade, and yet they missed that the UK doesn’t have a codified constitution.”

Actually, I think your argument misses two things:

1. The constitution is not only found in common law.

2. Not all common law is constitutional.

QC’s (like the rest of us) can make mistakes. But if you think a highly respected QC has made a glaringly obvious error, consider the possibility that maybe it’s you who’s made the error…

No anonymous

You are incorrect – in relation to the proceedings they are responding to does not necessitate this. Try and get into practice and you may learn so day wee son.

Just Anonymous

“in relation to the proceedings they are responding to does not necessitate this.”

Sorry. No idea what this is meant to mean. Could you translate it into English please?

Anonymous

Read the whole sentence, fool!

Just Anonymous

Ok, here’s the full sentence.

“You are incorrect – in relation to the proceedings they are responding to does not necessitate this.”

Nope, still haven’t got a clue what you’re on about. English translation please.

Sam

I have a law degree
I am used to reading case law and legal academic articles.

Based on what the author has highlighted regarding the apparent lack of legal argument (arguments supported by statute or precident) in the QCs skeleton case I currently belive the government case to be weak.

If I was self representing myself in court against a QC I would normally feal out matched. However if I noticed that the QC failed to cite any actual laws (statute or precident) I would feel so confident that I would offer the other side an extremely unfavorable (to them) out of court settlement and make it clear that they are in no position to refuse.

Nick

So he’s a kid. So what? It just shows that even a kid with a law degree can make inroads into demolishing the government’s case.

Anonymous

Not very well he can’t.

Luke Cage

Suck it up whiners. Out means Out!!

Anonymous

Isn’t that just another tautology? “Out” of what?

It’s clear to me, and it should be clear to anyone who runs through the process, that we can *never* be “out”. You’ve all this utter bollocks about “equivalence”, rather than passporting, for the financial sector – uh, so were going to be out of the EU, fully independent, and yet we’re going to have to model our financial regulation on that of the EU?

And the EU decides certain standards for products, our multi-national manufacturers are going to support the UK setting its own standards?

We’re going to be fully independent of the EU, but the EU still manages to take substantive action against the likes of Google and Microsoft, based in the USA, and thus have never been in the EU?

The UK’s localised industries, with their Protected Designation of Origin statuses, are going to be willing to give all that up because Ian Duncan-Smith can chuckle to himself over the fall in value of sterling?

Anyone who believes this nonsense must have been smoking something since the 1960s.

Trumpenkrieg

Suck it up, cuck! Your arguments are invalid from now on. The people have spoken!

Interloper

What is a cuck ?

A cuckold ? Doesn’t make any sense..

Are you chained up in a yard somewhere ? I think it might be better if you were…

Anonymous

They spoke? What did they say? “Leave” – what’s the definition of leave? Is it the Swiss deal, is it the Norwegian deal? Is it the Chinese deal?

That utter twat Ian Duncan-Smith was trying to tell us last night that the USA and China have access to the Single Market, so we can have that too. WTF is he on about – that’s paying import duties to sell to the EU, that’s not being in the Single Market!?

Sterling has lost more than 20% of its value against the USD and EUR in the past year and all Duncan-Smith can do is laugh and talk about how the GBP was overvalued – I don’t recall that argument from the Brexiteers during the referendum campaign. “Oh, of course the GBP is going to crash, because it is overvalued…” says Nigel Farage, not!

If there is any doubt about what is coming it can only be in the minds of moronic Brxiteers – already firms are telling us how much money they have lost due to the referendum outcome. Just last week EasyJet said it had lost £90 million.

Interloper

Amen with bells on – and no Marmite I’m afraid..

But here’s a Brodie helmet – put it on, Not Amused incoming…

Trumpenkrieg

Keep scrabbling around for short term and entirely expected economic repercussions to hold up as your ‘smoking gun proof’ that the People of Britain were wrong about Brexit. That stuff won’t wash anymore. The age of rule by wonk is coming to a close. The people have spoken!

Anonymous

“Wonk”!? Take a look at the government FFS!

Please point out the Brexiteers saying that the value of sterling would plummet after a LEAVE vote. That was the argument of the REMAIN camp, which the Brexiteers were denying. The moronic cheerleaders for Brexit said this wouldn’t happen, they keep chuckling away saying there’s no problem… but this is exactly what was forecast by the REMAIN camp.

And this is just the beginning of it, guess where we’ll be in a year’s time chump?

Anonymous

I’ll take that to mean you have no counter argument. Idiot.

Lord L'Isle of

Your Fater was an hamster and your mater was a Squirrel. We don’t care silly Anglais.

Anonymous

Surely it’s “pater” and “mater”. not “fater”?

Anonymous

Muzzer was a hamster and fazzer smelled of elderberries.

Made me smile to think of that scene… thanks 🙂

Anonymous

No, he was just overweight.

Anonymous

I found the Skeleton Argument of the greatest and best Government Legal Service panel barristers hard work:

My skeleton argument would cost the government buttons, and would, I hope, address 95% of the issues:

1. The Claimants seek to make mischief out of the idea that for the UK to withdraw from the EU in accordance with its own constitutional requirements, per Article 50, requires an Act of Parliament.

2. The mischief is that while 51.9% of the UK voted to leave the EU, there is a possibility that the combination of Labour and Conservative EU loyalist MPs in Parliament would frustrate the passing of such an Act, thereby allowing the UK to remain in the EU.

3. The argument is frivolous

We could spend the savings on a day off 🙂

Anonymous

Can I vote for you?

Anonymous

Mr Walker deserves all the odium and slurry that is being poured upon his gurning face…

Anonymous

I have a thick enough skin to take it.

Anonymous

All this and no mention of cheap booze!… Such high brow company is the envy of the meek such as I!

No anonymous

WHY ARE THERE SO MANY MISTAKES IN THIS!!!! It goes to show the appalling level of TC applicants accepted in the law society and the unbalanced level of competence presented.

Anonymous

Ding a ling,

A lot of ink has been spilt by Legal Cheek Commenters on Oxbridge versus Red Brick and Basket Weaving Universities which offer a law degree.

How do the defenders of Oxbridge feel about this analysis of the Government’s Skeleton Argument, the job with Legal Cheek and the offer of a training contract ?

The middle case scenario is that anyone from anywhere with the same grade of degree could have written an article like this (if they had a publisher).

The worse case scenario is that someone from London South Bank University*, being used to less personal attention and personal tuition than is supposed to be the norm at Cambridge, would have had the concentration and discipline required to have written a better one.

*This got pilloried last time out, and I defended it 🙂

Anonymous

How this person got into Cambridge is just unfathomable. Or in his own words: I’M GOBSMACKED

Tijuana Annan

Just to follow up on the up-date of this subject on your web page and wish to let you know just how much I prized the time you took to publish this beneficial post. Within the post, you actually spoke regarding how to truly handle this challenge with all comfort. It would be my own pleasure to collect some more thoughts from your web-site and come up to offer other folks what I have benefited from you. Thanks for your usual good effort.

https://www.youtube.com/watch?v=Q-oHPllCy5o

Andy

The whole thing just makes me sick. I’ve never seen our MP’s work so hard – especially the ones desperate to circumvent the closest thing we’ve had to a democratic say in decades! From a layman’s perspective this could be argued either way ad infinitum. The moral answer requires no legal gymnastics – we voted to leave and that means triggering Article 50. Simples.

Jude

Magnificent website. Plenty of helpful info here. I am sending it
to several pals ans also sharing in delicious. And certainly, thank you on your
effort!
fotballdrakter

Join the conversation