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Government forced to publish defence in Article 50 Brexit Litigation
September 27 2016 marked a preliminary victory for People’s Challenge, a crowdfunded group challenging Theresa May’s legal right to invoke Article 50 without parliament’s approval.
Earlier in the litigation, the government made an urgent application, requesting that every word of its defence detailing why the government should be entitled to use royal prerogative powers to trigger Brexit, as opposed to seeking permission from parliament, be kept confidential. The government’s rationale for such an application was that it would protect the claimants from online abuse.
The claimants challenged this and Mr Justice Cranston’s Order fell in their favour. He informed both parties that “against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under [Court] rules.”
The previously confidential documentation reveals arguments from the government including:
- the Scottish, Northern Ireland and Welsh devolved governments having nothing to do with Brexit from a constitutional point;
- by passing the EU Referendum Act, parliament understood that it surrendered its role in Brexit and its control in making and withdrawing from treaties; and
- if the government withdraws from treaties that grant individuals rights, those rights will too disappear.
A common mantra since the vote took place on June 23 2016 was that ‘Brexit means Brexit’ and there must be no attempts to remain, re-join through the back door or have a second referendum. However, Mr Justice Cranston’s Order allows the public to debate the legality of the Prime Minister’s intention to invoke Article 50 in the lead up to it being debated in the High Court on the 13 and 17 October 2016. Victory for the claimants in the trial would mean parliament would have to debate triggering Brexit, vote on Article 50 and then pass legislation dealing with the same, a process which would be likely to delay an EU exit.