Government's 'secret' Brexit strategy revealed in court documents

The government's 'secret' reasons for believing it alone can invoke article 50 and, according to campaigners, avoid parliamentary scrutiny of the Brexit vote have been revealed in court documents.

Under the new prime minister, Theresa May, the government has stated it can activate Brexit through the use of royal prerogative powers, but, up until now, has refused to make public its legal arguments.

However, a group of 'concerned British citizens' challenging the plans have won the right to publish the government's defence and unredacted submissions ahead of a highly anticipated showdown in the High Court next month.

An urgent application by the group was approved by Mr Justice Cranston, despite strong opposition from the government, which had argued that a case management order made in July meant all court papers had to remain confidential.

In an order dated 27 September, the court ruled that '... the parties are not prohibited from publishing the defendant's or their own detailed grounds... 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 the rules'.

Bindmans partner John Halford said the order allowed a 'floodlight to be shone on the government's secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny'. He added that 'those who were unsettled by the government's insistence on its defence being kept secret will now be surprised by the contents'.

In its submissions, the government has argued that Brexit has nothing constitutionally to do with the devolved governments of Scotland and Northern Ireland, and that parliament 'clearly understood' it was surrendering any role it might have in Brexit by its passing of the EU Referendum Act.

The government also argues that parliament has no control over the creation of or withdrawal from international treaties, and that individual rights can be stripped away if the executive withdraws from a treaty from which those rights originate.

In addition, the government asserts the court is 'ill-suited' to decide on how to invoke article 50, and, moreover, to compel the secretary of state to introduce new legislation is 'constitutionally impermissible' and would 'trespass on proceedings in parliament'.

The article 50 litigation began in July following the UK's shock vote to leave the European Union. The action is being led by claimants Gina Miller and Deir Dos Santos, represented by Mishcon de Reya and Edwin Coe respectively, and is set to be heard in the High Court in October.

Last week, the People's Challenge, which has been raising funds to join the litigation, made detailed submissions arguing that article 50 can only be invoked following an act of parliament.

Welcoming today's ruling, Tahmid Chowdhury, a member of the group, said: 'In initially withholding disclosure of their arguments, the government made a mockery of the transparency needed in a thriving democracy.

'They clearly now know they had no leg to stand on, and one can only hope the same thing happens in this case that should never have needed to come to court.'

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD