The Article 50 court case could have been avoided

Michael Madden
The Supreme Court Hears the Government's Challenge To Previous Brexit Ruling
Many people feel the government's Supreme Court battle over Brexit is a waste of time and money (Source: Getty)

To some, the government’s Supreme Court Brexit appeal is an exercise in throwing good money after bad and taxpayers’ funds are being wasted fighting the wrong battle.

The government appears to have overlooked that litigation is about identifying all the options available and picking your fights carefully to achieve the best possible outcome.

This litigation has been caused by the refusal of the European Council and the leaders of other EU countries to negotiate on the terms of the UK's exit until after the UK has served its Article 50 Notice. By then it has irrevocably committed the UK to exiting the EU on terms which it can eek out at the mercy of our former EU friends.

There is no legal basis for the EU's refusal to negotiate either in Article 50 itself, or broader European Union law, yet the UK government has accepted it. Why, some ask, has the EU been allowed to get away with this political posturing, why instead doesn't the government use whatever powers, influence and negotiating skills to force the EU to the negotiating table now?

Read more: Everything you've ever wanted to know about the Article 50 case

In its appeal the government is maintaining the position adopted in the High Court that, once served, an Article 50 Notice cannot be revoked. It is not clear why the government has adopted this approach as it plays squarely into the hands of the Parliamentarians who rely on this to justify their case that the triggering of Article 50 inevitably leads to changing 43 years of legislation derived from the UKs membership of the EU.

However, the revocability of an Article 50 Notice is far from clear. Once again, if the government could establish that as a matter of law, it could revoke its notice if the deal it negotiates with the EU is unacceptable to Parliament there would be no issue for the Supreme Court to consider today.

The government's approach here seems dictated by a concern to avoid the European Court considering the issue and delaying the process.

This situation was avoidable. If the government fails, ministers should expect to have their judgment questioned. Directors who lose their companies millions through ill-conceived litigation inevitably face demands to resign. Why should ministers escape similar responsibility?

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